Unfunded Mandates Reform Act: History, Impact, and Issues

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Unfunded Mandates Reform Act:

History, Impact, and Issues

Updated February 23, 2021

Congressional Research Service

https://crsreports.congress.gov

R40957

Unfunded Mandates Reform Act: History, Impact, and Issues

Summary

The Unfunded Mandates Reform Act of 1995 (UMRA) culminated years of effort by state and

local government officials and business interests to control, if not eliminate, the imposition of

unfunded intergovernmental and private-sector federal mandates. Advocates argued the statute

was needed to forestall federal legislation and regulations that imposed obligations on state and

local governments or businesses that resulted in higher costs and inefficiencies. Opponents argued

that federal mandates may be necessary to achieve national objectives in areas where voluntary

action by state and local governments and business failed to achieve desired results.

UMRA provides a framework for the Congressional Budget Office (CBO) to estimate the direct

costs of mandates in legislative proposals to state and local governments and to the private sector,

and for issuing agencies to estimate the direct costs of mandates in proposed regulations to

regulated entities. Aside from these informational requirements, UMRA controls the imposition

of mandates only through a procedural mechanism allowing Congress to decline to consider

unfunded intergovernmental mandates in proposed legislation if they are estimated to cost more

than specified threshold amounts. UMRA applies to any provision in legislation, statute, or

regulation that would impose an enforceable duty upon state and local governments or the private

sector. It does not apply to duties stemming from participation in voluntary federal programs;

rules issued by independent regulatory agencies; rules issued without a general notice of proposed

rulemaking; and rules and legislative provisions that cover individual constitutional rights,

discrimination, emergency assistance, grant accounting and auditing procedures, national security,

treaty obligations, and certain elements of Social Security. In most instances, UMRA also does

not apply to conditions of federal assistance.

Congress has made several legislative attempts to broaden UMRA’s coverage. For example, H.R.

701, the Unfunded Mandates Information and Transparency Act of 2021, and S. 170, its Senate

companion bill, would broaden UMRA’s coverage to include both direct and “reasonably

foreseeable” indirect costs, such revenues lost due to a major rule; make private-sector mandates

subject to a substantive point of order; and remove UMRA’s exemption for rules issued by most

independent agencies. Similar legislation has been introduced in the House and Senate in recent

Congresses, and the House passed similar legislation during the 112th, 113th, 114th, and 115th

Congresses.

This report examines debates over what constitutes an unfunded federal mandate and UMRA’s

implementation. It focuses on UMRA’s requirement that CBO issue written cost estimate

statements for federal mandates in legislation, its procedures for raising points of order in the

House and Senate concerning unfunded federal mandates in legislation, and its requirement that

federal agencies prepare written cost estimate statements for federal mandates in rules. It also

assesses UMRA’s impact on federal mandates and arguments concerning UMRA’s future,

focusing on UMRA’s definitions, exclusions, and exceptions that currently exempt many federal

actions with potentially significant financial impacts on nonfederal entities. An examination of

the rise of unfunded federal mandates as a national issue and a summary of UMRA’s legislative

history are provided in Appendix A. Citations to UMRA points of order raised in the House and

Senate are provided in Appendix B.

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Contents

An Overview of UMRA, Its Origins, and Provisions...................................................................... 1

Overview ................................................................................................................................... 1

Origin ........................................................................................................................................ 1

Summary of UMRA’s Provisions ............................................................................................. 2

What Is an Unfunded Federal Mandate? ......................................................................................... 4

Competing Definitions .............................................................................................................. 5

Statutory Direct Orders ....................................................................................................... 7

Total and Partial Statutory Preemptions.............................................................................. 8

Grant-in-Aid Conditions ..................................................................................................... 8

Federal Tax Provisions ........................................................................................................ 9

Federal Court Decisions; Administrative Rules Issued by Federal Agencies; and

Regulatory Delays and Nonenforcement ....................................................................... 10

UMRA’s Definition of an Unfunded Federal Mandate........................................................... 10

Exemptions and Exclusions ............................................................................................... 11

UMRA and Congressional Procedure (Title I) .............................................................................. 13

UMRA’s Procedures ............................................................................................................... 13

CBO Cost Estimate Statements ............................................................................................... 14

Points of Order for Initial Consideration................................................................................. 16

Impact on the Enactment of Statutory Intergovernmental and Private-Sector

Mandates .............................................................................................................................. 19

Congressional Issues for Title I ............................................................................................... 23

Exemptions and Exclusions .............................................................................................. 23

UMRA and Federal Rulemaking (Title II) .................................................................................... 25

Title II’s Exemptions and Exclusions ..................................................................................... 26

Federal Agency Cost Estimate Statements in Major Federal Rules ........................................ 27

Impact on the Rulemaking Process ......................................................................................... 32

Congressional Issues for Title II ............................................................................................. 34

Exemptions and Exclusions .............................................................................................. 34

Federal Agency Consultation Requirements ..................................................................... 36

Concluding Observations .............................................................................................................. 37

Tables

Table 1. CBO Estimates of Costs of Intergovernmental Mandates, 104th-116th Congresses ......... 14

Table 2. CBO Estimate of Costs of Private-Sector Mandates, 104th-116th Congresses ................. 15

Table 3. UMRA Points of Order in the House and Senate, by Congress ...................................... 18

Table 4. UMRA Written Mandate Cost Estimate Statements Issued by Federal Agencies

in Final Rules, 1995-2019 .......................................................................................................... 28

Appendixes

Appendix A. The Rise of Unfunded Mandates as a National Issue and UMRA’s

Legislative History ..................................................................................................................... 40

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Appendix B. UMRA Points of Order ............................................................................................ 48

Contacts

Author Information........................................................................................................................ 53

Acknowledgments ......................................................................................................................... 53

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Unfunded Mandates Reform Act: History, Impact, and Issues

An Overview of UMRA, Its Origins, and Provisions

Overview

The Unfunded Mandates Reform Act of 1995 (UMRA) established requirements for enacting

certain legislation and issuing certain regulations that would impose enforceable duties on state,

local, or tribal governments or on the private sector.1 UMRA refers to obligations imposed by

such legislation and regulations as “mandates” (either “intergovernmental” or “private sector,”

depending on the entities affected). The direct cost to affected entities of meeting these

obligations are referred to as “mandate costs,” and when the federal government does not provide

funding to cover these costs, the mandate is termed “unfunded.”

UMRA incorporates numerous definitions, exclusions, and exceptions that specify what forms

and types of mandates are subject to its requirements, termed “covered mandates.” Covered

mandates do not include many federal actions with potentially significant financial impacts on

nonfederal entities. This report’s primary purpose is to describe the kinds of legislative and

regulatory provisions that are subject to UMRA’s requirements, and, on this basis, to assess

UMRA’s impact on federal mandates. The report also examines debates that occurred, both

before and since UMRA’s enactment, concerning what kinds of provisions UMRA ought to

cover, and considers the implications of experience under UMRA for possible future revisions of

its scope of coverage.

This report also describes the requirements UMRA imposes on congressional and agency actions

to establish covered mandates. For most legislation and regulations covered by UMRA, these

requirements are only informational. For reported legislation that would impose covered

mandates on the intergovernmental or private sectors, UMRA requires the Congressional Budget

Office (CBO) to provide an estimate of mandate costs. Similarly, for regulations that would

impose covered mandates on the intergovernmental or private sectors, UMRA requires that the

issuing agency provide an estimate of mandate costs (although the specifics of the estimates

required for legislation and for regulations differ somewhat). Also, solely for legislation that

would impose covered intergovernmental mandates, UMRA establishes a point of order in each

house of Congress through which the chamber can decline to consider the legislation. This report

examines UMRA’s implementation, focusing on the respective requirements for mandate cost

estimates on legislation and regulations, and on the point of order procedure for legislation

proposing unfunded intergovernmental mandates.

Origin

The concept of unfunded mandates rose to national prominence during the 1970s and 1980s

primarily through the response of state and local government officials to changes in the nature of

federal intergovernmental grant-in-aid programs and to regulations affecting state and local

governments. Before then, the federal government had traditionally relied on the provision of

voluntary grant-in-aid funding to encourage state and local governments to perform particular

activities or provide particular services that were deemed to be in the national interest. These

arrangements were viewed as reflecting, at least in part, the constitutional protections afforded

state and local governments as separate, sovereign entities. During the 1970s and 1980s, however,

state and local government advocates argued that a “dramatic shift” occurred in the way the

1 P.L. 104-4; 109 Stat. 48 et seq.; and 2 U.S.C. §§602, 632, 653, 658-658(g), 1501-1504, 1511-1516, 1531-1538, 1551-

1556, and 1571.

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federal government dealt with states and localities. Instead of relying on the technique of

subsidization to achieve its goals, the federal government was increasingly relying on “new, more

intrusive, and more compulsory” programs and regulations that required compliance under the

threat of civil or criminal penalties, imposed federal fiscal sanctions for failure to comply with the

programs’ requirements, or preempted state and local government authority to act in the area.2

These new, more intrusive and compulsory programs and regulations came to be referred to as

“unfunded mandates” on states and localities.

State and local government advocates viewed these unfunded federal intergovernmental mandates

as inconsistent with the traditional view of American federalism, which was based on

cooperation, not compulsion. They argued that a federal statute was needed to forestall federal

legislation and regulations that imposed obligations on state and local governments that resulted

in higher costs and inefficiencies. UMRA’s enactment in 1995 culminated years of effort by state

and local government officials to control, if not eliminate, the imposition of unfunded federal

mandates.

Advocates of regulatory reform adapted the concept of unfunded mandates to their view that

federal regulations often impose financial burdens on private enterprise. Critics of government

regulation of business argued that these regulations impose unfunded mandates on the private

sector, just as federal programs and regulations impose fiscal obligations on state and local

governments. As a result, various business organizations subject to increased federal regulation

came to support state and local government efforts to enact federal legislation to control unfunded

federal intergovernmental mandates. Private-sector advocates argued that they, too, should be

provided relief from what they viewed as burdensome federal regulations that hinder economic

growth.3 Subsequently, proposals to control unfunded mandates that were developed in the early

1990s contained provisions addressing not only federal intergovernmental mandates, but federal

private-sector mandates as well.

During floor debate on legislation that became UMRA, sponsors of the measure emphasized its

role in bringing “our system of federalism back into balance, by serving as a check against the

easy imposition of unfunded mandates.”4 Opponents argued that federal mandates may be

necessary to achieve national objectives in areas where voluntary action by state and local

governments or business failed to achieve desired results. See Appendix A for a more detailed

examination of the rise of unfunded federal mandates as a national issue and of UMRA’s

legislative history.5

Summary of UMRA’s Provisions

The congressional commitment to reshaping intergovernmental relations through UMRA is

reflected in its eight statutory purposes:

2 U.S. Advisory Commission on Intergovernmental Relations (ACIR), Regulatory Federalism: Policy, Process, Impact,

and Reform, A-95 (Washington, DC: ACIR, 1984), pp. 1-18.

3 Mary McElvenn, “The Federal Impact on Business,” Nation’s Business, vol. 79, no. 1 (January 1991), pp. 23-26;

David Warner, “Regulations’ Staggering Costs,” Nation’s Business, vol. 80, no. 6 (June 1992), pp. 50-53; Michael

Barrier, “Taxing the Man Behind the Tree,” Nation’s Business, vol. 81, no. 9 (September 1993), pp. 31, 32; and

Michael Barrier, “Mandates Foes Smell a Victory,” Nation’s Business, vol. 82, no. 9 (September 1994), p. 50.

4 Senator Dirk Kempthorne, “Unfunded Mandate Reform Act,” remarks in the Senate, Congressional Record, vol. 141,

part 1 (January 12, 1995), p. 1166.

5 Senator Frank Lautenberg, “Unfunded Mandate Reform Act,” remarks in the Senate, Congressional Record, vol. 141,

part 1 (January 12, 1995), p. 1193.

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(1) to strengthen the partnership between the Federal Government and State, local, and

tribal governments;

(2) to end the imposition, in the absence of full consideration by Congress, of Federal

mandates on State, local, and tribal governments without adequate Federal funding, 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 State, local, and tribal

governments, and the private sector by—(A) providing for the development of information

about the nature and size of mandates in proposed legislation; and (B) establishing a

mechanism to bring such information to the attention of the Senate and the House of

Representatives before the Senate and the House of Representatives vote on proposed

legislation;

(4) to promote informed and deliberate decisions by Congress on the appropriateness of

Federal mandates in any particular instance;

(5) to require that Congress consider whether to provide funding to assist State, local, and

tribal governments in complying with Federal mandates, to require analyses of the impact

of private sector mandates, and through the dissemination of that information provide

informed and deliberate decisions by Congress and Federal agencies and retain competitive

balance between the public and private sectors;

(6) to establish a point-of-order vote on the consideration in the Senate and House of

Representatives of legislation containing significant Federal intergovernmental mandates

without providing adequate funding to comply with such mandates;

(7) to assist Federal agencies in their consideration of proposed regulations affecting State,

local, and tribal governments, by—(A) requiring that Federal agencies develop a process

to enable the elected and other officials of State, local, and tribal governments to provide

input when Federal agencies are developing regulations; and (B) requiring that Federal

agencies prepare and consider estimates of the budgetary impact of regulations containing

Federal mandates upon State, local, and tribal governments and the private sector before

adopting such regulations, and ensuring that small governments are given special

consideration in that process; and

(8) to begin consideration of the effect of previously imposed Federal mandates, including

the impact on State, local, and tribal governments of Federal court interpretations of

Federal statutes and regulations that impose Federal intergovernmental mandates. 6

To achieve its purposes, UMRA’s Title I established a procedural framework to shape

congressional deliberations concerning covered unfunded intergovernmental and private-sector

mandates. This framework requires CBO to estimate the direct mandate costs of

intergovernmental mandates exceeding $50 million and of private-sector mandates exceeding

$100 million (in any fiscal year) proposed in any measure reported from committee. It also

establishes a point of order against consideration of legislation that contained intergovernmental

mandates with mandate costs estimated to exceed the threshold amount. In addition, Title II

requires federal administrative agencies, unless otherwise prohibited by law, to assess the effects

on state and local governments and the private sector of proposed and final federal rules and to

prepare a written statement of estimated costs and benefits for any mandate requiring an

expenditure exceeding $100 million in any given year. All threshold amounts under these

provisions are adjusted annually for inflation.7 In 2021, the threshold amounts are $85 million for

intergovernmental mandates and $170 million for private-sector mandates.

6 2 U.S.C. §1501.

7 2 U.S.C. §658; and 2 U.S.C. §1532.

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In general, the requirements of Titles I and II apply to any provision in legislation, statute, or

regulation that would impose an enforceable duty upon state and local governments or the private

sector. However, UMRA does not apply to duties stemming from participation in voluntary

federal programs, rules issued by independent regulatory agencies, or rules issued without a

general notice of proposed rulemaking. Exceptions also exist for rules and legislative provisions

that cover individual constitutional rights, discrimination, emergency assistance, grant accounting

and auditing procedures, national security, treaty obligations, and certain elements of Social

Security legislation. In most instances, UMRA also does not apply to conditions of federal

assistance.8

UMRA’s Title III also called for a review of federal intergovernmental mandates to be completed

by the now-defunct U.S. Advisory Commission on Intergovernmental Relations (ACIR) within

18 months of enactment.9 ACIR completed a preliminary report on federal intergovernmental

mandates in January 1996, but the final report was not released.10 Finally, UMRA’s Title IV

authorizes judicial review of federal agency compliance with Title II provisions.11

What Is an Unfunded Federal Mandate?

One of the first issues Congress faced when considering unfunded federal mandate legislation

was how to define the concept. For example, during a November 3, 1993, congressional hearing

on unfunded mandate legislation, Senator Judd Gregg argued,

Any bill reported out this committee [Governmental Affairs] should precisely define what

constitutes an unfunded federal mandate.... An appropriate definition is crucial because it

will drive almost everything else that occurs. Without a precise definition, endless litigation

would likely ensue over what is and what is not an unfunded federal mandate. A true

solution to the problem cannot allow it to become more cost-effective to pay the bills than

to seek payment. Furthermore, the definition cannot be too restrictive. It would solve

nothing to cut off one particular type of unfunded mandate, only to prompt Congressional

use of another to accelerate.12

The difficulty Congress faced in defining the concept was the strong disagreements, among

academics, practitioners, and elected officials, over how to define it. These disagreements appear

motivated by concerns about which classes of costs incurred by state and local governments (or

the private sector) should be identified and controlled for in the legislative or regulatory process.

They have typically been conducted, however, as disputes about which classes of such costs are

properly considered as obligatory requirements on the affected entities. The resulting focus on

whether or not particular kinds of costs are “mandatory” has tended to obscure consideration of

8 2 U.S.C. §658(5)(A), (7)(A) and (10), and 2 U.S.C. §1503.

9 2 U.S.C. §§1551-1553.

10 ACIR funding was withdrawn following the release for public comment and a hearing on the draft report on federal

mandates. ACIR was required by UMRA to conduct the study and to make recommendations for mitigating the effect

mandates have on state and local governments. The draft report recommended the elimination of a number of federal

mandates which had strong support in Congress. ACIR’s commission members decided not to release the report in a

party-line vote. Most observers concluded that the draft report was a contributing factor in ACIR’s losing its funding.

See, John Kincaid, “Review of ‘The Politics of Unfunded Mandates: Whither Federalism?’ by Paul L. Posner,”

Political Science Quarterly, vol. 114, no. 2 (Summer 1999), pp. 322-323.

11 2 U.S.C. §1571.

12 U.S. Congress, Senate Committee on Governmental Affairs, Federal Mandates on State and Local Governments,

103rd Cong., 1st sess., November 3, 1993, S.Hrg. 103-405 (Washington: GPO, 1994), p. 66.

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the core policy question concerning what kinds of costs should be subjected to informational

requirements or procedural restrictions such as those that UMRA establishes.

Competing Definitions

In 1979, one set of federalism scholars defined unfunded federal intergovernmental mandates

broadly as including “any responsibility, action, procedure, or anything else that is imposed by

constitutional, administrative, executive, or judicial action as a direct order or that is required as a

condition of aid.”13 In 1984, ACIR offered a rationale for defining unfunded federal

intergovernmental mandates which excluded conditions of aid. ACIR argued that defining

unfunded federal intergovernmental mandates was difficult because federal grant-in-aid programs

typically include both incentives and mandates backed by sanctions or penalties:

Few federal programs affecting state and local governments are pure types.... Every grantin-aid program, including General Revenue Sharing, the least restrictive form of aid, comes

with federal “strings” attached. Here, as in other areas, there is no such thing as a free

lunch....

In the intergovernmental sphere, then, [mandates] and subsidy are less like different parts

of a dichotomy than opposing ends of a continuum. At one extreme is the general support

grant with just a few associated conditions or rules; at the other is the costly, but wholly

unfunded, national “mandate.” In between are many programs combining subsidy and

[mandate] approaches, in varying degrees and in various ways. 14

ACIR argued that because federal grant-in-aid programs typically combine subsidy and mandate

approaches, grant-in-aid programs should be classified according to their degree of compulsion. It

argued that conditions of grant aid should not be classified as a mandate because “one of the most

important features of the grant-in-aid is that its acceptance is still viewed legally as entirely

voluntary” and “although it is difficult for many jurisdictions to forego substantial financial

benefits, this option remains real.”15 ACIR also argued that most grant conditions affect only the

administration of those activities funded by the program, and “grants-in-aid generally provide

significant benefits to the recipient jurisdiction.”16

ACIR argued that federal grant-in-aid programs that “cannot be side-stepped, without incurring

some federal sanction, by the simple expedient of refusing to participate in a single federal

assistance program” should be considered mandates.17 ACIR provided four examples of federal

activities that, in the absence of sufficient compensatory funding, could be an unfunded

intergovernmental mandate: (1) direct legal orders that must be complied with under the threat of

civil or criminal penalties; (2) crosscutting or generally applicable requirements imposed on

grants across the board to further national social and economic policies; (3) programs that impose

13 Catherine H. Lovell, Max Neiman, Robert Kneisel, Adam Rose, and Charles Tobin, Federal and State Mandating on

Local Governments: Report to the National Science Foundation (Riverside, CA: University of California, June 1979),

p. 32.

14 ACIR, Regulatory Federalism: Policy, Process, Impact, and Reform, A-95 (Washington, DC: ACIR, 1984), p. 4.

15 ACIR, Regulatory Federalism: Policy, Process, Impact, and Reform, p. 4. The Supreme Court has emphasized the

voluntary nature of federal grant programs and the fact that states and private parties remain free to accept or reject the

offer of federal funds and thus avoid the attached conditions. “This Court has repeatedly upheld against constitutional

challenge the use of this technique to induce governments and private parties to cooperate voluntarily with federal

policy.” Fullilove v. Klutznick, 448 U.S. 448, 474 (1980) (Chief Justice Burger announcing judgment of the Court); see

also South Dakota v. Dole, 483 U.S. 203 (1987).

16 ACIR, Regulatory Federalism: Policy, Process, Impact, and Reform, p. 4.

17 ACIR, Regulatory Federalism: Policy, Process, Impact, and Reform, p. 7.

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federal fiscal sanctions in one program area or activity to influence state and local government

policy in another area; and (4) federal preemption of state and local government law.18

In 1994, several organizations representing state and local governments issued a set of unfunded

mandate principles which defined unfunded federal intergovernmental mandates as

any federal requirement that compels state or local activities resulting in

additional state or local expenditures;

any federal requirement that imposes additional conditions or increases the level

of state and local expenditures needed to maintain eligibility for existing federal

grants;

any reduction in the rate of federal matching for existing grants; and

any federal requirement that reduces the productivity of existing state or local

taxes and fees and/or that increases the cost of raising state and local revenue

(including the costs of borrowing).19

Also in 1994, ACIR introduced the term “federally induced costs” to replace what it described as

“the pejorative and definitional baggage associated with the term ‘mandates.’”20 ACIR identified

the following types of federal activities that expose states and localities to additional costs:

statutory direct orders;

total and partial statutory preemptions;

grant-in-aid conditions on spending and administration, including matching

requirements;

federal income tax provisions;

federal court decisions; and

administrative rules issued by federal agencies, including regulatory delays and

nonenforcement.21

ACIR defended its inclusion of grant-in-aid conditions in its list of “federally induced costs,”

which it had excluded from its definition of federal mandates a decade earlier, by asserting that

although the option of refusing to accept federal grants “seemed plausible when federal aid

constituted a small and highly compartmentalized part of state and local revenues, it overlooks

current realities. Many grant conditions have become far more integral to state and local

activities—and far less subject to voluntary forbearance—than originally suggested by the

contractual model.”22

On April 28, 1994, John Kincaid, ACIR’s executive director, testified at a congressional hearing

that legislation concerning unfunded mandates “should recognize that unfunded Federal mandates

18 ACIR, Regulatory Federalism: Policy, Process, Impact, and Reform, pp. 7-10.

19 National Conference of State Legislatures, “Unfunded Mandate Principles,” Washington, DC, 1994, p. 1, cited in

CRS Report 95-62, Mandates and the Congress, by Sandra S. Osbourn (out of print; available to congressional clients

by request).

20 ACIR, Federally Induced Costs Affecting State and Local Governments, M-193 (Washington, DC: ACIR, 1994),

p. 3.

21 ACIR, Federally Induced Costs Affecting State and Local Governments, p. 19. ACIR also included laws that expose

state and local governments to liability lawsuits, which, at the time, affected such programs as the Superfund toxic

wastes cleanup program.

22 ACIR, Federally Induced Costs Affecting State and Local Governments, p. 20.

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include, in reality, a range of Federally-induced costs for which reimbursements may be

legitimate considerations.”23 State and local government officials generally advocated the

inclusion of ACIR’s “federally induced costs” in legislation placing conditions on the imposition

of unfunded intergovernmental mandates. However, organizations representing various

environmental and social groups, such as the Committee on the Appointment of People With

Disabilities, the Natural Resources Defense Council, the American Federation of State, County,

and Municipal Employees, and the Service Employees International Union, argued that ACIR’s

definition was too broad. These groups testified at various congressional hearings that some

federal mandates, particularly those involving the environment and constitutional rights, should

be retained, even if they were unfunded.24

Statutory Direct Orders

With respect to definitions, there was, and continues to be, a general consensus among federalism

scholars, state and local government officials, and other organizations that federal policies which

impose unavoidable costs on state and local governments or business are, in the absence of

sufficient compensatory funding, unfunded federal mandates. Because statutory direct orders,

such as the Equal Employment Opportunity Act of 1972, which bars employment discrimination

on the basis of race, color, religion, sex, and national origin, are compulsory, they are considered

federal mandates. In the absence of sufficient compensatory funding, they are unfunded federal

mandates. However, there was, and continues to be, a general consensus that some statutory

direct orders, particularly those involving the guarantee of constitutional rights, should be exempt

from legislation placing conditions on the imposition of unfunded federal mandates.25 For

example, on April 28, 1994, then-Governor (and later Senator) Benjamin Nelson, testifying on

behalf of the National Governors Association at a congressional hearing on unfunded mandate

legislation, argued,

At the outset, Mr. Chairman, I want to make it absolutely crystal clear that the Governors’

position opposing unfunded environmental mandates must not be interpreted as an effort

to discontinue environmental legislation and regulations or oppose any individual’s civil

or constitutional rights. The Governors consider the protection of public health and State

natural resources as among the most important responsibilities of our office. We all take

an oath of office to protect the health and safety of our citizens. In addition, we have worked

with Congress over the years to enact strong Federal environmental laws. 26

23 U.S. Congress, Senate Committee on Governmental Affairs, Federal Mandate Reform Legislation, 103rd Cong., 2nd

sess., April 28, 1994, S.Hrg. 103-1019 (Washington: GPO, 1995), p. 56.

24 U.S. Congress, Senate Committee on Governmental Affairs, Federal Mandate Reform Legislation, pp. 53-55, 57-63,

68-70, 162-185, 200-230 and 247-249; U.S. Congress, Senate Committee on Governmental Affairs and Senate

Committee on the Budget; U.S. Congress, Senate Committee on Governmental Affairs, Federal Mandates on State and

Local Governments, 103rd Cong., 1st sess., November 3, 1993, S.Hrg. 103-405 (Washington: GPO, 1994), pp. 241-245;

and U.S. Congress, Senate Committee on Governmental Affairs, S.1–Unfunded Mandates, 104th Cong., 1st sess.,

January 5, 1995, S.Hrg. 104-392 (Washington: GPO, 1995), pp. 90-107.

25 U.S. Government Accountability Office (GAO), Unfunded Mandates: Views Vary About Reform Act’s Strengths,

Weaknesses, and Options for Improvement, GAO-05-454, March 31, 2005, pp. 9, 13, 14, at http://www.gao.gov/

new.items/d05454.pdf.

26 U.S. Congress, Senate Committee on Governmental Affairs, Federal Mandate Reform Legislation, 103rd Cong., 2nd

sess., April 28, 1994, S.Hrg. 103-1019 (Washington: GPO, 1995), p. 7.

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Total and Partial Statutory Preemptions

Total and partial preemptions of state and local spending and regulatory authority by the federal

government are compulsory, but there was, and continues to be, disagreement concerning whether

they should be considered federal mandates, or whether they should be included in legislation

designed to provide relief from unfunded federal mandates. Total preemptions in the

intergovernmental arena prevent state and local government officials from implementing their

own programs in a policy area. For example, states have been “stripped of their powers to engage

in economic regulation of airlines, bus, and trucking companies, to establish a compulsory

retirement age for their employees other than specified state policymakers and judges, or to

regulate bankruptcies with the exception of the establishment of a homestead exemption.”27

Partial preemption typically is a joint enterprise, “whereby the federal government exerts its

constitutional authority to preempt a field and establish minimum national standards, but allows

regulatory administration to be delegated to the states if they adopt standards at least as strict as

the federal rules.”28 Legally, the state decision to administer a partial preemption program is

voluntary. States that do not have a program in a particular area or do not wish to assume the

costs of administration and enforcement can opt out and allow the federal government to enforce

the standards.29 Nonetheless, the federal standards apply.

Total and partial statutory preemptions are distinct from unfunded federal intergovernmental

mandates because they do not necessarily impose costs or require state and local governments to

take action. Nonetheless, some federalism scholars and state and local government officials have

argued that total and partial statutory preemptions should be included in legislation placing

conditions on the imposition of unfunded federal mandates because they can have similar adverse

effects on state and local government flexibilities and, in some instances, resources.30 A leading

federalism scholar identified 557 federal preemption statutes as of 2005.31

Others argue that total and partial preemptions are distinct from unfunded federal mandates and,

therefore, should not be included in legislation placing conditions on the imposition of unfunded

federal mandates. In addition, some business organizations oppose including preemptions in any

law or definition involving unfunded federal mandates because federal preemptions can result in

the standardization of regulation across state and local jurisdictions, an outcome favored by some

business interests, particularly those with interstate and global operations.32

Grant-in-Aid Conditions

Conditions of grants-in-aid are generally not considered unfunded mandates because the costs

they impose on state and local governments can be avoided by refusing the grant. However,

27 Joseph F. Zimmerman, “National-State Relations: Cooperative Federalism in the Twentieth Century,” Publius: The

Journal of Federalism, vol. 31, no. 2 (Spring 2001), p. 23.

28 ACIR, Federally Induced Costs Affecting State and Local Governments, M-193 (Washington, DC: ACIR, 1994),

p. 22.

29 ACIR, Federally Induced Costs Affecting State and Local Governments, p. 23.

30 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, pp. 5, 11, 12, 23, 38, 39, 43, 47, 48, at http://www.gao.gov/new.items/d05454.pdf.

31 Joseph F. Zimmerman, “Congressional Preemption During the George W. Bush Administration,” Publius: The

Journal of Federalism, vol. 37, no. 3 (Summer 2007), p. 436.

32 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, p. 12, at http://www.gao.gov/new.items/d05454.pdf; and Paul L. Posner, “The Politics

of Preemption: Prospects for the States,” PS (July 2005), p. 372.

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federalism scholars and state and local government officials have argued that, in the absence of

sufficient compensatory funding, grant conditions should be considered unfunded federal

intergovernmental mandates, even though the grants themselves are voluntary.33 In their view,

federal “grants often require major commitments of state resources, changes in state laws, and

even constitutional provisions to conform to a host of federal policy and administrative

requirements” and that some grant programs, such as Medicaid, are “too large for state and local

governments to voluntarily turn down, or when new and onerous conditions are added some time

after state and local governments have become dependent on the program.”34 For example, on

April 28, 1994, Patrick Sweeney, a Democratic Member of Ohio’s state House of Representatives

testifying on behalf of the National Conference of State Legislatures (NCSL), asserted at a

congressional hearing on unfunded mandate legislation that

A great majority of the current problem can be attributed to Federal entitlements that are

defined but then not adequately funded, and the proliferation of a mandatory requirement

for what previously were voluntary programs. Programs like Medicaid are voluntary in

theory only. A State cannot unilaterally opt out of Medicaid at any time it wishes, once it

is in the program, without having to obtain a Federal waiver or face certain lawsuits. 35

Federal Tax Provisions

Federalism scholars and state and local government officials argue that federal tax policies that

preempt state and local authority to tax specific activities or entities are unfunded mandates, and

should be covered under legislation placing restrictions on unfunded mandates, because the fiscal

impact of preempting state or local government revenue sources cannot be avoided and “can be

every bit as costly” as mandates ordering state or local government action.36 For example, P.L.

105-277, the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999

(Title XI, Internet Tax Freedom Act) created a three-year moratorium preventing state and local

governments from taxing internet access, or imposing multiple or discriminatory taxes on

electronic commerce.37 A grandfather clause allowed the 13 states that had already imposed and

collected a tax on internet access before October 1, 1998, to continue implementing those taxes.

The moratorium on internet access taxation was extended eight times and made permanent by

P.L. 114-125, the Trade Facilitation and Trade Enforcement Act of 2015. The grandfather clause

was temporarily extended through June 30, 2020, allowing the seven states that still imposed a

tax on internet access to continue to do so. The NCSL has cited research suggesting that states

33 Paul L. Posner, “Mandates: The Politics of Coercive Federalism,” in Intergovernmental Management for the 21st

Century, eds. Timothy J. Conlan and Paul L. Posner (Washington, DC: Brookings Institution Press, 2008), p. 287; and

Paul L. Posner, The Politics of Unfunded Mandates: Whither Federalism? (Washington, DC: Georgetown University

Press, 1998), pp. 4, 12-14.

34 Paul L. Posner, The Politics of Unfunded Mandates: Whither Federalism? (Washington, DC: Georgetown University

Press, 1998), pp. 12, 13. See also, Joseph F. Zimmerman, “Federally Induced State and Local Government Costs,”

paper delivered at the 1991 Annual Meeting of the American Political Science Association, Washington, DC,

September 1, 1991, p. 4.

35 U.S. Congress, Senate Committee on Governmental Affairs, Federal Mandate Reform Legislation, 103rd Cong., 2nd

sess., April 28, 1994, S.Hrg. 103-1019 (Washington: GPO, 1995), p. 11.

36 National Conference of State Legislatures, “Policy Position on Federal Mandate Relief,” effective through August

2011, at http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,20,632#FederalMandate; and Paul L. Posner,

“Mandates: The Politics of Coercive Federalism,” in Intergovernmental Management for the 21st Century, eds.

Timothy J. Conlan and Paul L. Posner (Washington, DC: Brookings Institution Press, 2008), pp. 287, 292, 293.

37 For additional information and analysis concerning the Internet Tax Freedom Act see CRS Report R43772, The

Internet Tax Freedom Act: In Brief, by Jeffrey M. Stupak; and CRS Report R41853, State Taxation of Internet

Transactions, by Steven Maguire.

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could receive an additional $6.5 billion annually in state sales tax revenue if the moratorium was

lifted.38

In addition, because most state and local income taxes have been designed purposively to

conform to federal tax law, changes in federal tax policy can impact state and local government

finances. For example, federal tax cuts adopted in 2001 and 2003 affecting depreciation,

dividends, and estate taxes “forced states to acquiesce and accept their consequences or decouple

from the federal tax base.”39 Yet, federal tax changes are generally considered not to be unfunded

mandates because states and localities can avoid their costs by decoupling their income tax from

the federal income tax. Nevertheless, because federal tax changes can affect state and local

government tax bases, most state and local government officials advocate their inclusion in

federal legislation placing conditions on the imposition of unfunded federal mandates.

Federal Court Decisions; Administrative Rules Issued by Federal Agencies;

and Regulatory Delays and Nonenforcement

Federalism scholars, state and local government officials, and other organizations argue that, in

the absence of sufficient compensatory funding, court decisions and regulatory actions taken by

federal agencies, including regulatory delays and nonenforcement, are unfunded mandates and

should be included in legislation placing conditions on the imposition of unfunded mandates

because these actions can impose costs on state and local governments that cannot be avoided.

UMRA’s provisions concerning administrative rules are discussed in greater detail later in this

report (see the section on “UMRA and Federal Rulemaking (Title II)”).

UMRA’s Definition of an Unfunded Federal Mandate

After taking various definitions into consideration, Congress defined federal mandates in UMRA

more narrowly than state and local government officials had hoped. Federal intergovernmental

mandates were defined as any provision in legislation, statute, or regulation that “would impose

an enforceable duty upon State, local, or tribal governments” or “reduce or eliminate the amount”

of federal funding authorized to cover the costs of an existing mandate.40 Provisions in

legislation, statute, or regulation that “would increase the stringency of conditions of assistance”

or “would place caps upon, or otherwise decrease” federal funding for existing intergovernmental

grants with annual entitlement authority of $500 million or more could also be considered a

federal intergovernmental mandate, but only if the state, local, or tribal government “lack

authority under that program to amend their financial or programmatic responsibilities to continue

providing required services that are affected by the legislation, statute, or regulation.”41

38 Michael Mazerov, “Congress Should End—Not Extend—the Ban on State and Local Taxation of Internet Access

Subscriptions,” Center on Budget and Policy Priorities, Washington, DC, July 10, 2014, Table 2, at

http://www.cbpp.org/cms/?fa=view&id=4161; and Michael Mazerov, “State Implications of a Permanent Internet Tax

Freedom Act,” Presentation to the NCSL Executive Committee Task Force on State and Local Taxation, January 8,

2016, at http://www.ncsl.org/documents/task_forces/ITFA_Presentation_Final.pdf.

39 Paul L. Posner, “Mandates: The Politics of Coercive Federalism,” in Intergovernmental Management for the 21st

Century, eds. Timothy J. Conlan and Paul L. Posner (Washington, DC: Brookings Institution Press, 2008), p. 292.

40 2 U.S.C. §658(5)(A).

41 2 U.S.C. §658(5)(B).

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Private-sector mandates were defined as “any provision in legislation, statute, or regulation that

would impose an enforceable duty upon the private sector” or “reduce or eliminate the amount”

of federal funding authorized “for the purposes of ensuring compliance with such duty.”42

Key words in both definitions are “enforceable duty.” Because statutory direct orders, total and

partial preemptions, federal tax policies that preempt specific state and local tax policies, and

administrative rules issued by federal agencies cannot be avoided, they are enforceable duties and

are covered under UMRA. In contrast, because federal grants are voluntary, grant conditions are

not considered enforceable duties and, therefore, are not covered under UMRA. Federal tax

policies that impose costs on state and local governments that can be avoided by decoupling the

state or local government’s affected income tax provision from the federal income tax code are

not enforceable duties, and, therefore, also are not covered under UMRA.

UMRA considers a mandate unfunded unless the legislation authorizing the mandate fully meets

its estimated direct costs by either (1) providing new budget authority (direct spending authority

or entitlement authority) or (2) authorizing appropriations. If appropriations are authorized, the

mandate is still considered unfunded unless the legislation ensures that in any fiscal year, either

(1) the actual costs of the mandate are estimated not to exceed the appropriations actually

provided; (2) the terms of the mandate will be revised so that it can be carried out with the funds

appropriated; (3) the mandate will be abolished; or (4) Congress will enact new legislation to

continue the mandate as an unfunded mandate.43 This mechanism for reviewing and revising

mandates on the basis of their actual costs, which was introduced into UMRA in the “Byrd lookback amendment” (as described in Appendix A), applies only to intergovernmental mandates

enacted in legislation as funded through appropriations.

Exemptions and Exclusions

UMRA generally excluded preexisting federal mandates from its provisions, but, as mentioned, it

did include any provision in legislation, statute, or regulation that “would increase the stringency

of conditions of assistance” or “would place caps upon, or otherwise decrease” federal funding

for existing intergovernmental grants with annual entitlement authority of $500 million or more.44

However, this provision applies “only if the state or locality lacks authority to amend its financial

or programmatic responsibilities to continue providing the required services.”45

On June 28, 2012, the Supreme Court ruled in National Federation of Independent Business

(NFIB) v. Sebelius that the withdrawal of all Medicaid funds from the states for failure to comply

with Medicaid’s expansion under health care reform (P.L. 111-148; the Patient Protection and

Affordable Care Act) violated the Tenth Amendment. Prior to that ruling, CBO determined that

large intergovernmental entitlement grant programs, such as Medicaid and Temporary Assistance

to Needy Families, “allow states significant flexibility to alter their programs and accommodate

new requirements,” and, as a result, it determined that UMRA provisions generally did not apply

to these programs.46 Subsequent to the Supreme Court’s ruling, CBO has indicated that UMRA’s

42 2 U.S.C. §658(7)(A) and 2 U.S.C. §658(7)(B).

43 2 U.S.C. §658d(a)(2); §425 of the Congressional Budget and Impoundment Control Act of 1974, as amended, P.L.

93-344, 88 Stat. 297, 2 U.S.C. §658 et seq.

44 2 U.S.C. §658(5)(B).

45 U.S. Congress, Senate Committee on Finance, Work, Opportunity, and Responsibility for Kids Act, report to

accompany H.R. 4737, 107th Cong., 2nd sess., July 25, 2002, S.Rept. 107-221 (Washington: GPO, 2002), p. 61; and 2

U.S.C. §658(5)(B).

46 U.S. Congress, Senate Committee on Finance, Work, Opportunity, and Responsibility for Kids Act, report to

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provisions may apply to changes in “the stringency of conditions” or reductions in funding for

“certain large mandatory programs … if the affected governments lack the flexibility to alter the

programs.”47

Otherwise, UMRA’s Title I does not apply to conditions of federal assistance; duties stemming

from participation in voluntary federal programs; and legislative provisions that cover individual

constitutional rights, discrimination, emergency assistance, grant accounting and auditing

procedures, national security, treaty obligations, and certain parts of Social Security relating to the

old-age, survivors, and disability insurance program under title II of the Social Security Act.48

UMRA did not indicate that these exempted provisions and rules were not federal mandates.

Instead, it established that their costs would not be subject to its provisions requiring written cost

estimate statements, or to its provisions permitting a point of order to be raised against the

consideration of reported legislation in which they appear. The Senate Committee on

Governmental Affairs report accompanying S. 1, The Unfunded Mandates Reform Act of 1995,

provided its reasoning for adopting the exempted provisions and rules:

A number of these exemptions are standard in many pieces of legislation in order to

recognize the domain of the President in foreign affairs and as Commander-in-Chief as

well as to ensure that Congress’s and the Executive Branch’s hands are not tied with

procedural requirements in times of national emergencies. Further, the Committee thinks

that Federal auditing, accounting and other similar requirements designed to protect

Federal funds from potential waste, fraud, and abuse should be exempt from the Act.

The Committee recognizes the special circumstances and history surrounding the

enactment and enforcement of Federal civil rights laws. During the middle part of the 20th

century, the arguments of those who opposed the national, uniform extension of basic equal

rights, protection, and opportunity to all individuals were based on a States rights

philosophy. With the passage of the Civil Rights Acts of 1957 and 1964 and the Voting

Rights Act of 1965, Congress rejected that argument out of hand as designed to thwart

equal opportunity and to protect discriminatory, unjust and unfair practices in the treatment

of individuals in certain parts of the country. The Committee therefore exempts Federal

civil rights laws from the requirements of this Act.49

In addition, as will be discussed in the next section, UMRA does not require all legislative

provisions that contain federal mandates, even those that contain mandates that meet UMRA’s

definition, to have a CBO written cost estimate statement. In some instances, CBO may

determine that cost estimates may not be feasible or complete. In addition, UMRA only requires

estimates of direct costs imposed by the legislation. Estimates of indirect, secondary costs, such

as effects on prices and wages when the costs of a mandate imposed on one party are passed on to

others, such as customers or employees, are not required.50

accompany H.R. 4737, 107th Cong., 2nd sess., July 25, 2002, S.Rept. 107-221 (Washington: GPO, 2002), p. 61. For

additional information and analysis concerning National Federation of Independent Business (NFIB) v. Sebelius, see

CRS Report R42367, Medicaid and Federal Grant Conditions After NFIB v. Sebelius: Constitutional Issues and

Analysis, by Kenneth R. Thomas.

47 CBO, “CBO’s Activities Under the Unfunded Mandates Reform Act,” at https://www.cbo.gov/publication/51335.

48 2 U.S.C. §658a.

49 U.S. Congress, Senate Committee on Governmental Affairs, Unfunded Mandate Reform Act of 1995, report to

accompany S. 1, 104th Cong., 1st sess., January 11, 1995, S.Rept. 104-1 (Washington: GPO, 1995), p. 12.

50 GAO, Unfunded Mandates: Analysis of Reform Act Coverage, GAO-04-637, May 12, 2004, pp. 11-17, at

http://www.gao.gov/new.items/d04637.pdf.

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UMRA and Congressional Procedure (Title I)

UMRA’s Procedures

Under Title I, which took effect on January 1, 1996, CBO was directed, to the extent practicable,

to assist congressional committees, upon their request, in analyzing the budgetary and financial

impact of any proposed legislation that may have (1) a significant budgetary impact on state,

local, and tribal governments; (2) a significant financial impact on the private sector; or (3) a

significant employment impact on the private sector. CBO was also directed, if asked by a

committee chair or ranking minority member, to conduct a study, to the extent practicable, of the

budgetary and financial impact of proposed legislation containing a federal mandate. If

reasonably feasible, the study is to include estimates of the future direct costs of the federal

mandate “to the extent that such costs significantly differ from or extend beyond the 5-year

period after the mandate is first effective.”51

Although the actions noted above are technically discretionary, UMRA does contain mandatory

directives. When an authorizing committee reports a public bill or joint resolution containing a

federal mandate, UMRA requires the committee to provide the measure to CBO for budgetary

analysis.52 CBO is required to provide the committee a cost estimate statement of a mandate’s

direct costs if those costs are estimated to equal or exceed predetermined amounts, adjusted for

inflation, in any of the first five fiscal years the legislation would be in effect. In 2021, these

threshold amounts are $85 million for intergovernmental mandates and $170 million for privatesector mandates. CBO is also required to inform the committee if the mandate has estimated

direct costs below these thresholds and briefly explain the basis of the estimate.

CBO must also identify any increase in federal appropriations or other spending that has been

provided to fund the mandate.53 The federal mandate is considered unfunded unless estimated

costs are fully funded. As described above, under “UMRA’s Definition of an Unfunded Federal

Mandate,” UMRA provides that mandate costs be considered as funded only if the legislation

covers the mandate costs either by providing new direct spending or entitlement authority or by

authorizing appropriations and incorporating a mechanism to provide for the mandate to be

revised or abolished if the requisite appropriations are not provided.

Direct costs for intergovernmental mandates are defined as “the aggregate estimated amounts that

all State, local and tribal governments would be required to spend or would be prohibited from

raising in revenues in order to comply with the Federal intergovernmental mandate.”54 Direct

costs for private-sector mandates are defined as “the aggregate estimated amounts that the private

sector will be required to spend in order to comply with the Federal private sector mandate.”55

To accomplish these tasks, CBO created the State and Local Government Cost Estimates Unit

within its Budget Analysis Division to prepare intergovernmental mandate cost estimate

statements as well as other studies on the budgetary effects of mandates. It also added new staff to

its program analysis divisions to prepare private-sector mandate cost estimate statements.56

51 2 U.S.C. §602.

52 2 U.S.C. §658b.

53 2 U.S.C. §658c.

54 2 U.S.C. §658 (3)(A)(i).

55 2 U.S.C. §658 (3)(B).

56 Theresa A. Gullo and Janet M. Kelly, “Federal Unfunded Mandate Reform: A First-Year Retrospective,” Public

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A congressional committee is required to include the CBO estimate of mandate costs in its report

on the bill. If the mandate cost estimate is not available, or if the report is not expected to be in

print before the legislation reaches the floor for consideration, the committee is to publish the

mandate cost estimate in the Congressional Record in advance of floor consideration. In addition

to identifying direct costs, the committee’s report must also assess the likely costs and benefits of

any mandates in the legislation, describe how they affect the competitive balance between the

private and public sectors, state the extent to which the legislation would preempt state, local, or

tribal law, and explain the effect of any preemption. For intergovernmental mandates alone, the

committee is to describe in its report the extent to which the legislation authorizes federal funding

for direct costs of the mandate, and detail whether and how funding is to be provided.57

CBO Cost Estimate Statements

CBO submitted 14,381 estimates of mandate costs to Congress from January 1, 1996, when

UMRA’s Title I became effective, to December 31, 2020 (see Table 1). Each of these statements

examined the mandate costs imposed on the private sector or state, local, and tribal governments

by provisions in a specific bill, amendment, or conference report. About 11.2% of these cost

estimate statements (1,615 of 14,381) identified costs imposed by intergovernmental mandates,

and less than 1.0% of them (127 of 14,381) identified intergovernmental mandates that exceeded

UMRA’s threshold. CBO was unable to determine costs imposed by intergovernmental mandates

in 84 bills, amendments, or conference reports.

Table 1. CBO Estimates of Costs of Intergovernmental Mandates,

104th-116th Congresses

Congress

104th (1996)

Cost

Estimate

Statements

Transmitted

Statements With

Identified

Intergovernmental

Mandates

Intergovernmental

Mandate Costs

Exceeding the

Threshold

CBO

Unable to

Determine

Mandate

Costs

718

69

11

6

105th (1997-1998)

1,062

128

14

14

106th (1999-2000)

1,279

158

7

1

107th (2001-2002)

1,038

110

10

8

108th (2003-2004)

1,172

152

16

7

109th (2005-2006)

978

171

18

6

110th (2007-2008)

1,382

168

7

6

111th (2009-2010)

893

134

11

19

112th (2011-2012)

862

124

4

8

113th (2013-2014)

976

86

5

0

114th (2015-2016)

1,227

110

8

2

115th (2017-2018)

1,582

118

3

2

116th (2019-2020)

1,212

87

13

5

Administration Review, vol. 58, no. 5 (September/October 1998), p. 381. The State and Local Government Cost

Estimates Unit is now named the State, Local, and Tribal Government Cost Estimates Unit.

57 2 U.S.C. §658c(a).

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Congress

Total

Cost

Estimate

Statements

Transmitted

Statements With

Identified

Intergovernmental

Mandates

Intergovernmental

Mandate Costs

Exceeding the

Threshold

CBO

Unable to

Determine

Mandate

Costs

14,381

1,615

127

84

Sources: U.S. Congressional Budget Office (CBO), A Review of CBO’s Activities Under the Unfunded Mandates

Reform Act, 1996 to 2005, March 2006, p. 4; CBO, A Review of CBO’s Activities in 2008 Under the Unfunded

Mandates Reform Act, March 2009, p. 21; CBO, A Review of CBO’s Activities in 2010 Under the Unfunded Mandates

Reform Act, March 2011, p. 6; CBO, A Review of CBO’s Activities in 2012 Under the Unfunded Mandates Reform Act,

March 2013, p. 4; CBO, A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act, March 2015,

p. 4; CBO, “Mandate Statements Transmitted by CBO, 2007 to 2018,” at https://www.cbo.gov/publication/

51335; and CBO, “Cost Estimates,” February 17, 2021, at https://www.cbo.gov/cost-estimates.

Notes: CBO began preparing mandate statements in January 1996. The figures for the 104th Congress reflect

bills on the legislative calendar in January 1996 and bills reported by authorizing committees thereafter.

CBO has submitted 14,258 estimates to Congress that examined private-sector mandate costs

imposed by provisions in a specific bill, amendment, or conference report from January 1, 1996,

when UMRA’s Title I became effective, to December 31, 2020 (see Table 2). The number of

statements transmitted to Congress shown in Table 2 is less than the number shown in Table 1

because CBO is sometimes asked to review a specific bill, amendment, or conference report

solely for intergovernmental mandates.

Table 2. CBO Estimate of Costs of Private-Sector Mandates, 104th-116th Congresses

Congress

104th (1996)

Cost

Estimate

Statements

Transmitted

Statements

With Identified

Private-Sector

Mandates

Private-Sector

Mandate Costs

Exceeding

Threshold

CBO Unable to

Determine

Mandate Costs

673

91

38

2

105th (1997-1998)

1,023

140

36

14

106th (1999-2000)

1,253

191

26

20

107th (2001-2002)

1,034

139

37

22

108th (2003-2004)

1,168

171

38

28

109th (2005-2006)

974

184

45

32

110th (2007-2008)

1,382

256

67

49

111th (2009-2010)

893

190

41

50

112th (2011-2012)

862

147

40

35

113th (2013-2014)

976

124

22

13

114th (2015-2016)

1,226

162

14

14

115th (2017-2018)

1,582

207

17

17

116th (2019-2020)

1,212

188

37

24

14,258

2,190

456

320

Total

Sources: CBO, A Review of CBO’s Activities Under the Unfunded Mandates Reform Act, 1996 to 2005, March 2006,

p. 4; CBO, A Review of CBO’s Activities in 2008 Under the Unfunded Mandates Reform Act, March 2009, p. 21; CBO,

A Review of CBO’s Activities in 2010 Under the Unfunded Mandates Reform Act, March 2011, p. 6; CBO, A Review of

CBO’s Activities in 2012 Under the Unfunded Mandates Reform Act, March 2013, p. 4; CBO, A Review of CBO’s

Activities in 2014 Under the Unfunded Mandates Reform Act, March 2015, p. 4; CBO, “Mandate Statements

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Transmitted by CBO, 2007 to 2018,” at https://www.cbo.gov/publication/51335; and CBO, “Cost Estimates,”

February 17, 2021, at http://www.cbo.gov/search/ce_sitesearch.cfm.

Notes: CBO began preparing mandate statements in January 1996. The figures for the 104th Congress reflect

bills on the legislative calendar in January 1996 and bills reported by authorizing committees thereafter. In some

years, CBO transmitted more cost estimate statements for intergovernmental mandates than private-sector

mandates because sometimes CBO was asked to review a specific bill, amendment, or conference report solely

for intergovernmental mandates.

About 15.3% of these private-sector estimates (2,190 of 14,258) identified costs imposed by

mandates, and about 3.2% of them (456 of 14,258) identified costs that exceeded UMRA’s

threshold. CBO was unable to determine costs imposed by private-sector mandates in 320 bills,

amendments, or conference reports.

Points of Order for Initial Consideration

UMRA provides for the enforcement of its informational requirements on legislation by

establishing a point of order in each chamber against consideration of a measure on which the

reporting committee has not published the required estimate of mandate costs. This point of order

applies only to measures reported by committees (for which CBO estimates of mandate costs are

required), but it applies for both intergovernmental and private-sector mandates. In addition,

however, if the informational requirement is met, a point of order against consideration of a

measure may still be raised, if, for any fiscal year, the estimated total mandate cost of unfunded

intergovernmental mandates in the measure exceeds UMRA’s threshold amount ($85 million in

2021). This point of order may be raised also if CBO reported that no reasonable estimate of the

cost of intergovernmental mandates was feasible.58

Uniquely among the requirements established by UMRA, this substantive point of order

addressing intergovernmental mandates contained in legislation constitutes a potential means of

control over the actual imposition of mandate costs. Even in this case, however, the mechanisms

established by UMRA provide a means of controlling mandates only on the basis of estimates of

the costs that will be incurred in subsequent fiscal years. The only provision of UMRA that offers

a possibility of controls based on costs actually incurred by affected entities is the requirement,

mentioned earlier, that a mandate can be considered funded through appropriations only if it

directs that, if insufficient appropriations are made, the mandate must be revised, abolished, or

reenacted as unfunded.

In several respects, the applicability of the substantive point of order differs from that of the

informational point of order. First, it applies to any measure coming to the floor for consideration,

whether or not reported by a committee, and also to conference reports. For a measure that has

been reported, this point of order applies to the measure in the form reported, including, for

example, to a committee amendment in the nature of a substitute. In addition, this point of order

applies against an amendment or motion (such as a motion to recommit with amendatory

instructions), and does so on the basis not that the mandate costs of the amendment or motion

itself exceeds the threshold, but that the amendment or motion would cause the total mandate

costs in the measure to do so. Finally, however, this point of order applies only against

intergovernmental mandates. UMRA imposes no comparable control in relation to private-sector

mandates.

Because federal mandates are created through authorization bills, the UMRA points of order

generally do not apply to bills reported by the House and Senate Committees on Appropriations.

However, if an appropriation bill, resolution, amendment, or conference report contains

58 2 U.S.C. §658d(a); and 2 U.S.C. §658c(b)(3).

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legislative provisions that would either increase the direct costs of a federal intergovernmental

mandate that exceeds the threshold, or cause those costs to exceed the threshold, a point of order

may be raised against the provisions themselves. In the Senate, if this point of order is sustained,

the provisions are stricken from the bill.59

In the House, the chair does not rule on a point of order raised under these provisions. Instead, the

House, by majority vote, determines whether to consider the measure despite the point of order.

To prevent dilatory use of the point of order, the chair need not put the question of consideration

to a vote unless the Member making the point of order meets the “threshold burden” of

identifying specific language that is claimed to contain the unfunded mandate. Also, if several

points of order could be raised against the same measure, House practices under UMRA allow all

of them to be disposed of at once by a single vote on consideration. If the Committee on Rules

proposes a special rule for considering the measure that waives the point of order, UMRA

subjects the special rule itself to a point of order, which is disposed of by the same mechanism. 60

In the Senate, if questions are raised challenging the applicability of an UMRA point of order

(e.g., to prevent its use for dilatory purposes), the presiding officer, to the extent practicable,

consults with the Committee on Homeland Security and Governmental Affairs to determine if the

measure contains an intergovernmental mandate and with the Senate Committee on the Budget to

determine if the mandate’s direct costs meet UMRA’s threshold for allowing a point of order to

be raised. The Senate Committee on the Budget may draw for this purpose on CBO cost estimate

statements. If there are no such challenges, or the presiding officer rules against the challenge, the

Senate determines whether to consider the measure despite the point of order. It may do so by

voting on a motion to waive the point of order.61

Initially, a majority vote was sufficient to waive the point of order in the Senate.62 In 2005, the

Senate increased its threshold to waive an UMRA point of order to three-fifths of Senators duly

chosen and sworn (normally 60 votes), as was already required of many other Budget Act points

of order. Two UMRA points of order were raised in the Senate that year, and both were sustained,

defeating two amendments to an appropriations bill that would have increased the minimum wage

(see Table 3). In 2007, the Senate returned its threshold for waiving an UMRA point of order to a

majority vote.63

On May 5, 2015, the Senate agreed to the conference report on S.Con.Res. 11, the concurrent

budget resolution for FY2016, which the House had previously agreed to on April 30, 2015. The

59 2 U.S.C. §658d(c).

60 2 U.S.C. §658e(a); and 2 U.S.C. §658e(b)(3).

61 2 U.S.C. §658d(d); and 2 U.S.C. §658d(e).

62 2 U.S.C. §558d(a); §403(b)(1) of H.Con.Res. 95, adopted April 28, 2005.

63 2 U.S.C. §558d(a).

On April 2, 2009, the Senate approved, by unanimous consent, an amendment (S.Amdt. 819) to S.Con.Res. 13, the

concurrent budget resolution for FY2010, which would have again increased the vote necessary in the Senate to waive

an UMRA point of order to three-fifths of Senators duly chosen and sworn (normally 60 votes). The amendment was

subsequently dropped in the final version of the concurrent budget resolution for FY2010.

On March 23, 2013, the Senate agreed, by voice vote, to an amendment (S.Amdt. 538) to S.Con.Res. 8, the concurrent

budget resolution for FY2014. It would have restored the requirement for waiving an UMRA point of order in the

Senate to three-fifths of the full Senate (normally 60 votes). S.Con.Res. 8 was received in the House on April 15, 2013,

and held at the desk. Because the House did not act on the measure, and no other legislation on the matter was

approved by Congress, the simple majority requirement for appealing or waiving UMRA points of order in the Senate

remained in effect.

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resolution included a provision that restored the requirement for waiving an UMRA point of order

in the Senate to three-fifths of Senators duly chosen and sworn (normally 60 votes).

On February 5, 2021, the House agreed to S.Con.Res. 5, the concurrent resolution on the budget

for FY2021, which the Senate had agreed to earlier that day. The resolution included a provision

that returned the Senate’s threshold for waiving an UMRA point of order to a majority vote.

Prior to the Senate’s increasing the threshold necessary to waive an UMRA point of order in

2015, a scholar familiar with UMRA argued that, inasmuch as the general floor procedures of the

Senate already allows Senators to force a majority vote on a mandate by moving to strike it from

the bill, UMRA’s enforcement procedure of waiving a point of order by majority vote meant that

UMRA mattered only in the House.64 As evidence of this, the scholar noted that during UMRA’s

first 10 years of operation, when the threshold to waive an UMRA point of order was a majority

vote in both the House and Senate, 13 UMRA points of order were raised, all in the House (see

Table 3).

Table 3. UMRA Points of Order in the House and Senate, by Congress

Points of

Order Raised

in the House

Points of

Order

Sustained in

the House

Points of

Order Raised

in the Senate

Points of

Order

Sustained in

the Senate

104th (1996)

3

1

0

0

105th (1997-1998)

4

0

0

0

106th (1999-2000)

4

0

0

0

107th (2001-2002)

2

0

0

0

108th (2003-2004)

0

0

0

0

109th (2005-2006)

6

0

2

2

110th (2007-2008)

8

0

0

0

111th (2009-2010)

13

0

1

0

112th (2011-2012)

10

0

0

0

113th (2013-2014)

6

0

0

0

114th (2015-2016)

5

0

1

0

115th (2017-2018)

1

0

0

0

116th (2019-2020)

1

0

0

0

Total

63

1

4

2

Congress

Source: Congressional Record, various years. A list of UMRA points of order raised to date is provided in

Appendix B.

As indicated in Table 3, 63 UMRA points of order have been raised in the House. Only one of

these points of order, the first one, which was raised on March 28, 1996, in opposition to a

proposal to add a minimum wage increase to the Contract With America Advancement Act of

1996, resulted in the House voting to reject consideration of a proposed provision. During the

111th-114th Congresses, UMRA points of order in the House were often raised not to challenge

unfunded federal mandates per se, but to use the 10 minutes of debate allowed each House

64 Elizabeth Garrett, “Framework Legislation and Federalism,” Notre Dame Law Review, vol. 83, no. 4 (2008), p. 1502.

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Member initiating an UMRA point of order to challenge the pace of legislative consideration,

limitations on the offering of amendments to appropriations bills, or the inclusion of earmarks in

legislation.65

Also, as indicated in Table 3, UMRA points of order have been raised in the Senate four times. In

2005, points of order were raised against two amendments relating to an increase in the minimum

wage. In each case the Senate declined to waive the point of order, and the chair ruled that the

amendment was out of order because it contained unfunded intergovernmental mandates in

excess of the threshold.66 In 2009, an UMRA point of order was raised against intergovernmental

mandates in a health care reform bill.67 The Senate voted to waive the point of order, 55-44.68 The

Senate subsequently approved the bill with the mandates.69 In 2016, an UMRA point of order was

raised against intergovernmental mandates in a bill designed to assist Puerto Rico in addressing

its debt.70 The Senate voted to waive the point of order, 85-13.71 The Senate subsequently

approved the bill with the mandates.72

Impact on the Enactment of Statutory Intergovernmental and

Private-Sector Mandates

Although UMRA points of order have been sustained just three times, most state and local

government officials assert that UMRA has reduced “the number of unfunded federal mandates

by acting as a deterrent to their enactment.”73 For example, in 2001, Raymond Scheppach, thenNGA’s executive director, testified before a House subcommittee that UMRA had slowed the

growth of unfunded mandates and improved communications between federal policymakers and

state and local government officials:

Direct mandates have declined sharply in the wake of the Act. But I would venture that

UMRA has had an even greater intangible benefit. As Congressman Portman once told us,

he was certain this would be one of those bills that he could frame and hang on his wall,

and it would become just another relic of history. But, to his surprise, the Act has led—

time and again—to members asking his advice: “Do you think this bill will cause an

UMRA problem? With whom should I work?” The very threat of a CBO report has

65 Based on CRS review of the 34 points of order raised in the House during the 111th-114th Congresses.

66 “Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and

Independent Agencies Appropriations Act, 2006,” proceedings in the Senate, Congressional Record, daily edition, vol.

151 (October 19, 2005), pp. S11526, S11547-S11548.

67 Senator Robert Corker, “H.R. 3590, the Service Members Home Ownership Tax Act of 2009,” remarks in the

Senate, Congressional Record, daily edition, vol. 155, no. 199 (December 23, 2009), pp. S13803, S13804.

68 “Consideration of H.R. 3590, the Service Members Home Ownership Tax Act of 2009, Senate Rollcall Vote No.

390,” Congressional Record, daily edition, vol. 155, no. 199 (December 23, 2009), p. S13831.

69 “Consideration of H.R. 3590, the Patient Protection and Affordable Care Act, Senate Rollcall Vote No. 396,”

Congressional Record, daily edition, vol. 155, no. 201 (December 24, 2009), p. S13831.

70 Senator Bernie Sanders, “National Sea Grant College Program Amendments of 2015 (Puerto Rico Oversight,

Management, and Economic Stability Act—PROMESA),” Senate debate on S. 2328, Congressional Record, vol. 162,

no. 105 (June 29, 2016), pp. S4691-S4702.

71 “Motion to Concur, Senate Rollcall Vote No. 115,” Congressional Record, daily edition, vol. 162, no. 105 (June 29,

2016), p. S4702.

72 “Vote on Motion to Concur, Senate Rollcall Vote No. 116,” Congressional Record, daily edition, vol. 162, no. 105

(June 29, 2016), p. S4702.

73 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, p. 15, at http://www.gao.gov/new.items/d05454.pdf.

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engendered efforts to reach out to state and local leaders before the fact—instead of after.

It has changed the nature of our intergovernmental discussion in a very positive way. 74

More recently, NCSL has argued that UMRA has brought increased attention to the fiscal effects

of federal legislation on state and local governments, improved federal accountability, and

enhanced consultation.75 In addition, there have been documented instances in which either

sponsors of legislation have modified provisions to avoid a CBO statement that unfunded

intergovernmental mandate costs exceeded the threshold, or measures with such costs estimated

to exceed the threshold were altered prior to floor consideration to reduce their costs below the

threshold.76

As mentioned, since UMRA’s Title I became effective in 1996, CBO has submitted 14,381

written cost estimate statements to Congress that examined the costs imposed by provisions in a

specific bill, amendment, or conference report on the private sector and/or state and local

governments. It identified intergovernmental mandates in 1,615 of them (11.2%). CBO reports

that, as of December 31, 2019, 16 laws (containing 22 intergovernmental mandates) have been

enacted since UMRA became effective in 1996 that have costs estimated to exceed the statutory

threshold.77 Those laws are as follows:

Two increases in the minimum wage. P.L. 104-188, the Small Business Job

Protection Act of 1996, enacted in 1996, was estimated to cost state and local

governments more than $1 billion during the first five years that it was in effect.

P.L. 110-28, the U.S. Troop Readiness, Veterans’ Care, Katrina Recovery, and

Iraq Accountability Appropriations Act, 2007, enacted in 2007, was estimated to

cost state and local governments slightly less than $1 billion during the first five

years that it was in effect.

Preemption of state taxes on premiums for certain prescription drug plans in P.L.

108-73, the Family Farmer Bankruptcy Relief Act of 2003, enacted in 2003, was

estimated to cost states $70 million in revenue in 2006, the first year it was in

effect, and increase to about $95 million annually by 2010.

The temporary preemption of states’ authority to tax certain internet services and

transactions in P.L. 108-435, the Internet Tax Nondiscrimination Act, enacted in

2004, was estimated to reduce state and local government tax revenue by at least

$300 million. The extension of this preemption in P.L. 110-108, the Internet Tax

Freedom Act Amendments Act of 2007, enacted in 2007, was estimated to reduce

state and local government tax revenue by about $80 million annually. Making

the moratorium permanent (while allowing state and local governments that had

been collecting such taxes prior to October 1, 1998 to continue to collect such

74 Joint Hearing, U.S. Congress, House Committee on Government Reform, Subcommittee on Energy Policy, Natural

Resources and Regulatory Affairs, and House Committee on Rules, Subcommittee on Technology and the House,

Unfunded Mandates: A Five Year Review and Recommendations for Change, hearing on the Unfunded Mandates

Reform Act of 1995, 107th Cong., 1st sess., May 24, 2001, H. Hrg. 107-19 (Washington: GPO, 2001), p. 61.

75 National Conference of State Legislatures, “State and Federal Budgeting: Federal Mandate Relief,” at

http://www.ncsl.org/state-federal-committees.aspx?tabs=855,20,632.

76 Paul L. Posner, “Unfunded Mandates Reform Act: 1996 and Beyond,” Publius: The Journal of Federalism, vol. 27,

no. 2 (Spring 1997), pp. 57-59; GAO, Unfunded Mandates: Analysis of Reform Act Coverage, GAO-04-637, May 12,

2004, p. 19, at http://www.gao.gov/new.items/d04637.pdf; and GAO, Unfunded Mandates: Views Vary About Reform

Act’s Strengths, Weaknesses, and Options for Improvement, GAO-05-454, March 31, 2005, p. 15, at

http://www.gao.gov/new.items/d05454.pdf.

77 CBO, Enacted Intergovernmental Mandates With Estimated Costs That Exceed the Statutory Threshold, 1996 to

2019, at https://www.cbo.gov/publication/51335.

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taxes, but only through June 2020) in P.L. 114-125, the Trade Facilitation and

Trade Enforcement Act of 2015, enacted in 2016, was estimated to cost state and

local governments more than $100 million in the final three months of FY2020

(July through September) and more than several hundred million dollars annually

thereafter.

The requirement that state and local governments meet certain standards for

issuing driver’s licenses, identification cards, and vital statistics documents in

P.L. 108-458, the Intelligence Reform and Terrorism Prevention Act of 2004,

enacted in 2004, was estimated to cost state and local governments more than

$100 million over 2005-2009, with costs exceeding the threshold in at least one

of those years.

The elimination of matching federal payments for some child support spending in

P.L. 109-171, the Deficit Reduction Act of 2005, enacted in 2006, was estimated

to cost states more than $100 million annually beginning in 2008.

The requirement that state and local governments withhold taxes on certain

payments for property and services in P.L. 109-222, the Tax Increase Prevention

and Reconciliation Act of 2005, enacted in 2006, was estimated to cost state and

local governments more than $70 million annually beginning in 2011.

Requirements on rail and transit owners and operators to train workers and

submit reports to the Department of Homeland Security in P.L. 110-53, the

Implementing Recommendations of the 9/11 Commission Act of 2007, enacted in

2007, was estimated to cost state and local governments more than UMRA’s

threshold in at least one of the first five years following enactment.

The requirement that commuter railroads install train-control technology in P.L.

110-432, the Railroad Safety Enhancement Act of 2008, enacted in 2008, was

estimated to cost state and local governments more than UMRA’s threshold in at

least one of the first five years following enactment.

The requirement that public entities that handle health insurance information

comply with new regulations; health insurance plans pay an annual fee based on

average number of people covered by the policy; public employers pay an excise

tax on employer-sponsored health insurance coverage defined as having high

costs; health insurance plans comply with new standards for extending coverage;

and public entities must comply with new notice and reporting requirements on

health insurance plans in P.L. 111-148, the Patient Protection and Affordable

Care Act, enacted in 2010, was estimated to have costs for state and local

governments that would greatly exceed UMRA’s thresholds in each of the first

five years following enactment.

The requirement that schools provide meals that comply with new standards for

menu planning and nutrition and with nutrition standards for all food sold in

schools in P.L. 111-296, the Healthy, Hunger-Free Kids Act of 2010, enacted in

2010, was estimated to have costs for state and local governments that would

exceed UMRA’s threshold beginning the first year that the mandates take

effect.78

78 CBO, A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act, March 2015, pp. 5, 40, at

https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/50051-UMRA2_0.pdf; CBO, Selected CBO

Publications Related to Health Care Legislation, 2009-2010, December 2010, pp. 17, 18, 148, 166, at

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The aggregate cost of requiring Puerto Rico and its instrumentalities to comply

with the directives and processes of a federal oversight board tasked with

overseeing the territory’s fiscal affairs and to pay for the costs of the oversight

board’s staff and operating expenses in P.L. 114-187, the Puerto Rico Oversight,

Management, and Economic Stability Act (PROMESA), enacted in 2016, was

estimated to exceed UMRA’s threshold.

The aggregate cost of requiring public and private entities to offer terrorism

insurance, collect and report information to the federal government, and collect

surcharges from policyholders, as required by P.L. 116-94, the Further

Consolidated Appropriations Act, 2020, would exceed UMRA’s threshold in at

least one of the first five years the mandates are in effect.

State and local government interest groups argue that these statistics confirm UMRA’s

effectiveness in serving as a deterrent to the enactment of new unfunded mandates that exceed

UMRA’s threshold and meet UMRA’s definition of a federal mandate. However, they also argue

that many mandates with costs below UMRA’s threshold, or that do not meet UMRA’s definition

of a federal mandate, have been adopted since UMRA’s enactment.79

CBO also reports that from January 1, 2006, to December 31, 2019, 2,587 public laws were

enacted. Of these laws, 220 had at least one intergovernmental mandate as defined under UMRA.

These laws imposed 457 mandates on state and local governments, with 17 of these mandates

exceeding UMRA’s threshold, 16 with estimated costs that could not be determined, and 424 with

estimated costs below the threshold.80 CBO reported that hundreds of other laws had an effect on

state and local government budgets, but those laws did not meet UMRA’s definition of a federal

mandate.81

As mentioned, CBO has submitted 14,258 cost estimate statements to Congress that examined the

costs imposed by provisions in a specific bill, amendment, or conference report that might impact

the private sector. It identified private-sector mandates in 2,190 of them (15.3%). CBO reports

that from January 1, 2006, to December 31, 2019, 333 of the 2,587 public laws that were enacted

had at least one private-sector mandate as defined under UMRA. These laws imposed 856

mandates on the private sector, with 129 of these mandates exceeding UMRA’s threshold, 97

http://www.cbo.gov/ftpdocs/120xx/doc12033/12-23-SelectedHealthcarePublications.pdf; and S.Rept. 111-178,

Healthy, Hunger-Free Kids Act of 2010, Estimated Costs and Unfunded Mandates.

79 National Conference of State Legislatures, “State and Federal Budgeting: Federal Mandate Relief,” at

http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,20,632#FederalMandate.

80 CBO, Laws Enacted Between 2006 and 2019 That Contain Mandates, at https://www.cbo.gov/publication/51335;

and CBO, “Laws That Contain Mandates,” at https://www.cbo.gov/umra-search/law.

81 CBO, A Review of CBO’s Activities in 2008 Under the Unfunded Mandates Reform Act, March 2009, p. 48, at

http://www.cbo.gov/ftpdocs/100xx/doc10058/03-31-UMRA.pdf; CBO, A Review of CBO’s Activities in 2010 Under

the Unfunded Mandates Reform Act, March 2011, p. 5, at http://www.cbo.gov/ftpdocs/121xx/doc12117/03-31UMRA.pdf; CBO, A Review of CBO’s Activities in 2011 Under the Unfunded Mandates Reform Act, March 2012, pp.

5-7, at http://www.cbo.gov/sites/default/files/cbofiles/attachments/03-30-UMRA.pdf; CBO, A Review of CBO’s

Activities in 2012 Under the Unfunded Mandates Reform Act, March 2013, pp. 5-9, at http://www.cbo.gov/sites/default/

files/cbofiles/attachments/44032_UMRA.pdf; CBO, A Review of CBO’s Activities in 2013 Under the Unfunded

Mandates Reform Act, March 2014, p. 5, at http://www.cbo.gov/sites/default/files/cbofiles/attachments/45209UMRA.pdf; CBO, A Review of CBO’s Activities in 2014 Under the Unfunded Mandates Reform Act, March 2015, p. 5,

at http://www.cbo.gov/sites/default/files/cbofiles/attachments/50051-UMRA.pdf; and CBO, Laws Enacted Between

2006 and 2016 That Contain Mandates, at https://www.cbo.gov/publication/51335.

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with estimated costs that could not be determined, and 630 with estimated costs below the

threshold.82

Congressional Issues for Title I

Exemptions and Exclusions

State and local government officials argue that UMRA’s exemptions and exclusions reduce its

effectiveness in limiting the enactment of unfunded federal intergovernmental mandates. They

argue that federal programs in the exempted and excluded areas can still result in the imposition

of costs on state, local, and tribal governments. Also, because UMRA does not include these costs

as “mandates,” they are exempt even from the requirement for CBO to estimate these costs. For

example, in 2008, NCSL asserted that “although fewer than a dozen mandates have been enacted

that exceed the threshold established in UMRA, Congress has shifted at least $131 billion in costs

to states over the past five years” and that during the 110th Congress at least $31 billion in

additional costs were imposed on states through new mandates.83

To reduce these costs, NCSL has recommended that UMRA’s provisions on points of order and

requirements for written cost estimate statements also apply to (1) all open-ended entitlement

grant-in-aid programs, such as Medicaid, and legislative provisions that would cap or enforce a

ceiling on the cost of federal participation in any entitlement or mandatory spending program; (2)

new conditions of federal funding for existing federal grants and programs; (3) legislative

provisions that reduce state revenues, especially when changes to the federal tax code are

retroactive or otherwise provide states with little or no opportunity to prospectively address the

impact of a change in federal law on state revenues; and (4) mandates that fail to exceed the

statutory threshold only because they do not affect all states.84

For the most part, business interests have generally supported state and local government officials

in their efforts to broaden UMRA’s coverage of federal intergovernmental mandates. In perhaps

the most extensive effort to obtain various viewpoints on UMRA, in 2005, the Government

Accountability Office (GAO) held group meetings, individual interviews, and received written

responses from 52 individuals and organizations, including academic centers and think tanks,

businesses, federal agencies, public interest advocacy groups, and state and local governments,

concerning unfunded mandates. GAO reported that UMRA’s coverage was the issue most

frequently commented on by parties from all five sectors, including business, and that most of the

parties representing business viewed UMRA’s relatively narrow coverage as a major weakness

that leaves out many federal actions with potentially significant financial impacts on nonfederal

parties.85 However, GAO also found that the business sector has “generally been in favor of

82 CBO, Laws Enacted Between 2006 and 2019 That Contain Mandates, at https://www.cbo.gov/publication/51335;

and CBO, “Laws That Contain Mandates,” at https://www.cbo.gov/umra-search/law.

83 National Conference of State Legislatures, Mandate Monitor, vol. 6, no. 1 (April 8, 2008), p. 1.

84 NCSL also advocates a revision of the definition of direct costs to capture and more accurately reflect the true costs

to state governments of particular federal actions; requiring that mandate statements accompany appropriations bills;

enactment of legislation that would require federal reimbursement, as long as the mandate exists, to state and local

governments for costs imposed on them by any new federal mandates; restrictions regarding the preemption of state

laws; repeal or modification of certain existing mandates; and a review of UMRA’s existing exclusions. See National

Conference of State Legislatures, “State and Federal Budgeting: Federal Mandate Relief,” at http://www.ncsl.org/

Default.aspx?TabID=773&tabs=855,20,632#FederalMandate.

85 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, p. 9, at http://www.gao.gov/new.items/d05454.pdf.

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federal preemptions for reasons such as standardizing regulation across state and local

jurisdictions.”86

Although GAO found that most of the parties it contacted viewed UMRA’s coverage of

intergovernmental mandates as being too narrow, it also reported that some of the participants

opposed an expansion of UMRA’s coverage:

A few parties from the public interest sector and academic/think tank sectors considered

some of the existing exclusions important or identified UMRA’s narrow scope as one of

the act’s strengths.... Specifically, these parties argued in favor of maintaining UMRA’s

exclusions or expanding them to include federal actions regarding public health, safety,

environmental protection, workers’ rights, and the disabled.... [They also] focused on the

importance of the existing exclusions, particularly those dealing with constitutional and

statutory rights, such as those barring discrimination against various groups. 87

With respect to private-sector mandates in legislation, UMRA allows a point of order to be raised

only if UMRA’s informational requirements are not met; that is, only if the committee reporting

the measure fails to publish a CBO cost estimate statement of the private-sector mandate’s costs.

Over the years, various business organizations, including the U.S. Chamber of Commerce, have

advocated the extension of UMRA’s substantive point of order for intergovernmental mandates to

the private sector, permitting a point of order to be raised against consideration of legislation that

includes private-sector mandates with costs that exceed UMRA’s threshold.88

The GAO report also noted that “parties primarily from the academic/think tank and state and

local governments sectors ... noted that while much attention has been focused on the actual

(direct) costs of mandates, it is important to consider the broader implications on affected

nonfederal entities beyond direct costs, including indirect costs such as opportunity costs, forgone

revenues, shifting priorities, and fiscal trade-offs.”89

During the 115th Congress, H.R. 50, the Unfunded Mandates Information and Transparency Act

of 2018, passed by the House on July 13, 2018, would have broadened UMRA’s coverage to

include both direct and indirect costs, such as foregone profits and costs passed onto consumers,

and, when requested by the chair or ranking member of a committee, the prospective costs of

legislation that would change conditions of federal financial assistance. The bill also would have

made private-sector mandates subject to a substantive point of order and remove UMRA’s

exemption for rules issued by most independent agencies. The House passed similar legislation

during the 112th, 113th, and 114th Congresses.90

86 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement, p.

12.

87 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

pp. 9, 13-14.

88 U.S. Congress, Senate Committee on Government Reform, S. 389–The Unfunded Mandates Information Act, hearing

on S. 389, 105th Cong., 2nd sess., June 3, 1998, S.Hrg. 105-664 (Washington: GPO, 1998), pp. 28-35.

89

GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, pp. 22, 23, at http://www.gao.gov/new.items/d05454.pdf. GAO also found that “parties

across the sectors suggested that various forms of retrospective analysis are needed for evaluating federal mandates

after they are implemented” and “parties in the academic/think tank sector suggested analyzing the benefits of federal

mandates, when appropriate, not just costs.”

90 House-passed legislation during the 112th Congress, H.R. 4078, the Red Tape Reduction and Small Business Job

Creation Act: Title IV, the Unfunded Mandates Information and Transparency Act of 2012; during the 113th Congress,

H.R. 899, the Unfunded Mandates Information and Transparency Act of 2014, and H.R. 4, the Jobs for America Act:

Division III, the Unfunded Mandates Information and Transparency Act of 2014; and during the 114th Congress, H.R.

50, the Unfunded Mandates Information and Transparency Act of 2015. Similar legislation was also introduced in the

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Similar legislation was introduced during the 116th Congress (H.R. 300, the Unfunded Mandates

Information and Transparency Act of 2019, and S. 4077, the Unfunded Mandates Information and

Transparency Act) and 117th Congress (H.R. 701, the Unfunded Mandates Information and

Transparency Act of 2021, and S. 170, the Unfunded Mandates Information and Transparency

Act).

UMRA and Federal Rulemaking (Title II)

UMRA’s Title II, which became effective on March 22, 1995, generally requires federal agencies,

unless otherwise prohibited by law, to prepare written statements that identify costs and benefits

of a federal mandate to be imposed through the rulemaking process that may result in the

expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of

$100 million or more (adjusted annually for inflation) in any one year, before “promulgating any

general notice of proposed rulemaking.”91 In 2021, the threshold for preparing a written statement

is $170 million. These informational requirements for regulations, like the Title I cost estimate

requirements for legislation, apply to both intergovernmental and private-sector mandates. Title II

establishes no equivalent to the point of order mechanism in Title I through which either house

can decline to consider legislation proposing covered unfunded intergovernmental mandates

above the applicable threshold level.

The written assessments that federal agencies are to prepare for their regulations must identify the

law authorizing the rule and include a qualitative and quantitative assessment of anticipated costs

and benefits, the share of costs to be borne by the federal government, and the disproportionate

budgetary effects upon particular regions, state, local, or tribal governments, or particular

segments of the private sector. Assessments must also include estimates of the effect on the

national economy, descriptions of consultations with nonfederal government officials, and a

summary of the evaluation of comments and concerns obtained throughout the promulgation

process.92 Impacts of “any regulatory requirements” on small governments must be identified,

notice must be given to those governments, and technical assistance must be provided.93 Also,

federal agencies are required, to the extent permitted in law, to develop an “effective process to

permit elected officers of State, local, and tribal governments (or their designated employees with

authority to act on their behalf) to provide meaningful and timely input in the development of

regulatory proposals containing significant Federal intergovernmental mandates.”94 UMRA also

requires federal agencies to consider “a reasonable number” of regulatory alternatives and select

the “least costly, most cost-effective or least burdensome alternative” that achieves the objectives

of the rule.95

UMRA requires the Office of Management and Budget’s (OMB’s) director to collect the

executive branch agencies’ written cost estimate statements and periodically forward copies to

CBO’s director. It also directs OMB to establish pilot programs in at least two federal agencies to

test innovative regulatory approaches to reduce regulatory burdens on small governments, and

provide Congress a written annual report detailing compliance with the act by each agency for the

Senate.

91 2 U.S.C. §1532.

92 2 U.S.C. §1532.

93 2 U.S.C. §1533.

94 2 U.S.C. §1534.

95 2 U.S.C. §1535.

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preceding reporting period.96 OMB’s director has delegated these responsibilities to its Office of

Information and Regulatory Affairs (OIRA).

Most of these provisions were already in place when UMRA was adopted. For example,

Executive Order 12866, issued in September 1993, required agencies to provide OIRA with

assessments of the costs and benefits of all economically significant proposed rules (defined as

having an annual impact on the economy of $100 million or more), including some rules that

were not mandates; identify regulatory alternatives and explain why the planned regulatory action

is preferable to other alternatives; issue regulations that were cost-effective and impose the least

burden on society; and seek the views of state, local, and tribal officials before imposing

regulatory requirements that might significantly or uniquely affect them. 97

Title II’s Exemptions and Exclusions

UMRA’s requirement for federal agencies to issue written cost estimate statements for mandates

issued through the rulemaking process that may result in expenditures of $100 million or more

(adjusted annually for inflation) by state and local governments, in the aggregate, or by the

private sector, in any one year, is subject to the exemptions and exclusions that apply to

legislative provisions (e.g., conditions of federal assistance, duties arising from participation in a

voluntary federal program, and constitutional rights of individuals). UMRA’s requirements also

do not apply (1) to provisions in rules issued by independent regulatory agencies; (2) if the

agency is “otherwise prohibited by law” from considering estimates of costs in adopting the rule

(e.g., under the Clean Air Act the primary air quality standards are health-based and the courts

have affirmed that the U.S. Environmental Protection Agency is not to consider costs in

determining air quality standards for ozone and particulate matter); or (3) to any rule for which

the agency does not publish a general notice of proposed rulemaking in the Federal Register.98

GAO has found that about half of all final rules published in the Federal Register are published

without a general notice of proposed rulemaking, including some rules with impacts over $100

million annually.99

In addition, UMRA’s threshold for federal mandates in rules is limited to expenditures, in

contrast to the thresholds in Title I, which refer to direct costs. As a result, a federal rule’s

estimated annual effect on direct costs might meet Title I’s threshold, but might not meet Title II’s

threshold if the rule does not compel nonfederal entities to spend that amount. For example, under

Title I, direct costs include any amounts that state and local governments are prohibited from

96 2 U.S.C. §§1536-1538.

97 GAO, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, GAO-GDD-98-30,

February 4, 1998, p. 29, at http://www.gao.gov/assets/230/225165.pdf; and GAO, Unfunded Mandates: Views Vary

About Reform Act’s Strengths, Weaknesses, and Options for Improvement, GAO-05-454, March 31, 2005, p. 27, at

http://www.gao.gov/new.items/d05454.pdf. For further analysis concerning OIRA, see CRS Report RL32397, Federal

Rulemaking: The Role of the Office of Information and Regulatory Affairs, coordinated by Maeve P. Carey.

98 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, pp. 26, 27, at http://www.gao.gov/new.items/d05454.pdf; and U.S. Office of

Management and Budget (OMB), Office of Information and Regulatory Affairs, 2008 Report to Congress on the

Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, 2008, p. 25.

99 GAO, Federal Rulemaking: Agencies Often Published Final Actions Without Proposed Rules, GAO/GGD-98-126,

August 31, 1998, pp. 1, 2, at http://www.gao.gov/assets/230/226214.pdf; and GAO, Federal Rulemaking: Past Reviews

and Emerging Trends Suggest Issues That Merit Congressional Attention, GAO-06-228T, November 1, 2005, pp. 8-10,

at http://www.gao.gov/assets/120/112501.pdf.

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raising in revenue to comply with the mandate. These costs are not considered when determining

whether a mandate meets Title II’s threshold because funds not received are not expenditures.100

Also, in contrast to Title I, Title II does not require the agencies issuing regulations to address the

question of whether federal funding is available to cover the costs to the private sector of

mandates imposed by regulations. In general, agencies lack authority to provide such funding,

which could be provided only by legislative action. Title II addresses the funding only of

intergovernmental mandates, and only by requiring that agencies identify the extent to which

federal resources may be available to carry out those mandates.101 The differences in the coverage

of Title I and Title II may reflect a compromise reached with congressional Members who

opposed using UMRA as a vehicle to address broader regulatory reform advocated by business

interests. For example, Senator John Glenn argued in the Senate Committee on Governmental

Affairs’ committee report on UMRA:

Another problematic change from S. 993 is the expansion of the “regulatory accountability

and reform” provisions of Title 2 to go beyond intergovernmental mandates to address any

and all regulatory effects on the private sector. The intended purpose of S. 1 is to control

unfunded Federal mandates on State and local governments. I have always supported that

goal. Moreover, I believe that if we keep the bill sharply focused on that purpose, we can

get the legislation passed quickly and signed into law. If, however, we let the bill be

stretched to cover other issues, we hurt prospects for enactment and we break our pledge

to our friends in the State and local governments.... I believe that the bill should be brought

back to its original purpose by limiting regulatory analysis to intergovernmental

mandates.... In short, I support using this legislation to control intergovernmental

regulatory costs. I oppose using this bill to address broader regulatory reform issues.102

Federal Agency Cost Estimate Statements in Major Federal Rules

From March 22, 1995, when UMRA’s Title II became effective, to the end of FY2019, OMB

reviewed 1,205 final rules with estimated benefits and/or costs exceeding $100 million

annually.103 Most (75.5%) of those “major” rules (910) did not contain provisions meeting

UMRA’s definition of a mandate.

100 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, p. 27, at http://www.gao.gov/new.items/d05454.pdf.

101 2 U.S.C. §1532 (a)(2).

102 U.S. Congress, Senate Committee on Governmental Affairs, Unfunded Mandate Reform Act of 1995, report to

accompany S. 1, 104th Cong., 1st sess., January 11, 1995, S.Rept. 104-1 (Washington: GPO, 1995), p. 28.

103 GAO, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, GAO-GDD-98-30,

February 4, 1998, p. 16, at http://www.gao.gov/assets/230/225165.pdf; OMB, 1997 Report to Congress on the Costs

and Benefits of Regulations, September 1997, chapter 3; OMB,1998 Report to Congress on the Costs and Benefits of

Regulations, January 1999, p. 44; OMB, 2000 Report to Congress on the Costs and Benefits of Regulations, June 2000,

pp. 37, 38; OMB, Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, December 2001, pp. 20, 21; OMB, Stimulating Smarter

Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, December 2002, pp. 46, 47; OMB, Informing Regulatory Decisions: 2003Report to

Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities,

September 2003, p. 10; OMB, Progress in Regulatory Reform: 2004 Report to Congress on the Costs and Benefits of

Regulations and Unfunded Mandates on State, Local, and Tribal Entities, December 2004, p. 12; OMB, Validating

Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on

State, Local, and Tribal Entities, December 2005, p. 11; OMB, 2006 Report to Congress on the Costs and Benefits of

Regulations and Unfunded Mandates on State, Local, and Tribal Entities, January 2007, p. 6; OMB, 2007 Report to

Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities, June

2008, p. 7; OMB, 2008 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State,

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Whereas, as Table 1 and Table 2 show, CBO identified slightly more private-sector mandates

than intergovernmental mandates, Table 4 shows that most of the mandates identified in

regulations have been directed at the private sector. This emphasis appears consistent with the

original concern of business advocates to extend the concept of mandates to the area of regulatory

reform.

As indicated in Table 4, during the time period covered, 297 major rules met UMRA’s definition

of a mandate on the public or private sector and, therefore, were issued an UMRA cost estimate

statement: 277 of these major rules contained private-sector mandates only, 8 contained both

private and public-sector mandates, and 12 contained public-sector mandates only.

Table 4. UMRA Written Mandate Cost Estimate Statements Issued by

Federal Agencies in Final Rules, 1995-2019

Private-Sector

Mandates

Private- and

Public-Sector

Mandates

Public-Sector

Mandates

Number of

Major

Rules With

UMRA

Mandates

June 1995-May 2000

75

0

5

80

June 2000-May 2001

16

0

2

18

May 2001-October 2001

4

0

0

4

FY2002

5

0

0

5

FY2003

17

0

0

17

FY2004

9

1

0

10

FY2005

3

0

1

4

FY2006

9

0

2

11

FY2007

11

0

0

11

FY2008

8

0

0

8

FY2009

11

0

1

12

FY2010

13

0

0

13

FY2011

13

0

0

13

FY2012

9

1

1

11

Time Period

Local, and Tribal Entities, January 2009, p. 8; OMB, 2009 Report to Congress on the Benefits and Costs of Federal

Regulations and Unfunded Mandates on State, Local, and Tribal Entities, January 2010, p. 3; OMB, 2010 Report to

Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal

Entities, July 2010, p. 3; OMB, 2011 Report to Congress on the Benefits and Costs of Federal Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, June 2011, p. 3; OMB, 2012 Report to Congress on the

Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, April 2013, p.

3; OMB, 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, May 2014, p. 4; OMB, 2014 Report to Congress on the Benefits and Costs of Federal

Regulations and Unfunded Mandates on State, Local, and Tribal Entities, June 2015, p. 2; OMB, 2015 Report to

Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal

Entities, March 2016, p. 2; OMB, 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and

Agency Compliance with the Unfunded Mandates Reform Act, December 23, 2016, p. 2; OMB, 2017 Report to

Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates

Reform Act, December 9, 2019, p. 1; and OMB, 2018, 2019, 2020 Draft Report to Congress on the Benefits and Costs

of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act, December 23, 2019, p. 3.

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Private-Sector

Mandates

Private- and

Public-Sector

Mandates

Public-Sector

Mandates

Number of

Major

Rules With

UMRA

Mandates

FY2013

10

2

0

12

FY2014

10

1

0

11

FY2015

12

1

0

13

FY2016

27

2

0

29

FY2017

11

0

0

11

FY2018

1

0

0

1

FY2019

3

0

0

3

Total

277

8

12

297

Time Period

Sources: Joint Hearing, U.S. Congress, House Committee on Government Reform, Subcommittee on Energy

Policy, Natural Resources and Regulatory Affairs, and House Committee on Rules, Subcommittee on Technology

and the House, Unfunded Mandates: A Five Year Review and Recommendations for Change, hearing on the Unfunded

Mandates Reform Act of 1995, 107th Congress, 1st session, May 24, 2001, H. Hrg. 107-19 (Washington: GPO,

2001), p. 40; U.S. Office of Management and Budget (OMB), Making Sense of Regulation: 2001 Report to Congress

on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities, December 2001,

pp. 189-195; OMB, Stimulating Smarter Regulation: 2002 Report to Congress on the Costs and Benefits of Regulations

and Unfunded Mandates on State, Local, and Tribal Entities, December 2002, pp. 161, 162; OMB, Informing Regulatory

Decisions: 2003 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, September 2003, pp. 202-204; OMB, Progress in Regulatory Reform: 2004 Report to Congress on

the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities, December 2004, pp.

225-234; OMB, Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, December 2005, pp. 143-148; OMB, 2006 Report to Congress

on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local, and Tribal Entities, January 2007, pp.

141-143; OMB, 2007 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, June 2008, pp. 76-81; OMB, 2008 Report to Congress on the Costs and Benefits of

Regulations and Unfunded Mandates on State, Local, and Tribal Entities, January 2009, pp. 77-81; OMB, 2009 Report

to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities,

January 27, 2010, pp. 62-65; OMB, 2010 Report to Congress on the Benefits and Costs of Federal Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, July 20, 2010, pp. 73-79; OMB, 2011 Report to Congress on

the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, June 24, 2011,

pp. 94-98; OMB, 2012 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on

State, Local, and Tribal Entities, April 2013, pp. 101-104; OMB, 2013 Report to Congress on the Benefits and Costs of

Federal Regulations and Unfunded Mandates on State, Local, and Tribal Entities, May 2014, pp. 79-83; OMB, 2014

Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State, Local, and Tribal

Entities, June 2015, pp. 73-77; OMB, 2015 Report to Congress on the Benefits and Costs of Federal Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, March 2016, pp. 73-76; OMB, 2016 Draft Report to Congress

on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates Reform Act,

December 23, 2016, pp. 56-60; OMB, 2017 Report to Congress on the Benefits and Costs of Federal Regulations and

Agency Compliance with the Unfunded Mandates Reform Act, December 9, 2019, pp. 68-74; and OMB, 2018, 2019,

2020 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded

Mandates Reform Act, no date provided, pp. 46, 47.

The 20 major rules with public-sector mandates, 11 issued by the U.S. Environmental Protection

Agency (EPA), are as follows:

EPA’s Rule on Standards of Performance for Municipal Waste Combustors and

Emissions Guidelines (1995), with estimated costs of $320 million annually;104

104 OMB, 2006 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, January 2007, pp. 18-19.

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EPA’s Standards of Performance for New Stationary Sources and Guidelines for

Control of Existing Sources: Municipal Solid Waste Landfills (1996), with

estimated costs of $110 million annually;105

EPA’s National Primary Drinking Water Regulations: Disinfectants and

Disinfection Byproducts (1998), with estimated costs of $700 million

annually;106

EPA’s National Primary Drinking Water Regulations: Interim Enhanced Surface

Water Treatment (1998), with estimated costs of $300 million annually;107

EPA’s National Pollutant Discharge Elimination: System B Regulations for

Revision of the Water Pollution Control Program Addressing Storm Water

Discharges (1999), with estimated costs of $803.1 million annually;108

EPA’s National Primary Drinking Water Regulations; Arsenic and Clarifications

to Compliance and New Source Contaminants Monitoring (2001), with estimated

costs of $189 million to $216 million annually;109

U.S. Department of Health and Human Services’ (DHHS’s) Standards for

Privacy of Individually Identifiable Health Information (2001), with estimated

costs of $2.4 billion over 10 years;110

EPA’s Establishing Location, Design, Construction, and Capacity Standards

for Cooling Water Intake Structures at Large Existing Power Plants

(FY2004), with estimated costs totaling about $265 million annually;111

EPA’s Rulemaking on Section 126 Petition from North Carolina to Reduce

Interstate Transport of Fine Particulate Matter and Ozone (FY2005), with

estimated costs totaling more than $110 million;112

EPA’s National Primary Drinking Water Regulations: Long Term 2 Enhanced

Surface Water Treatment (FY2006), with estimated costs between $80 million

and $130 million per year;113

105 OMB, 2006 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, p. 19.

106 OMB, 2006 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, p. 19.

107 OMB, 2006 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, p. 19.

108 OMB, 2006 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, p. 20.

109 OMB, 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, June 24, 2011, p. 33.

110 OMB, Making Sense of Regulation: 2001 Report to Congress on the Costs and Benefits of Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, December 2001, p. 191.

111 OMB, Validating Regulatory Analysis: 2005 Report to Congress on the Costs and Benefits of Regulations and

Unfunded Mandates on State, Local, and Tribal Entities, December 2005, p. 147.

112 OMB, 2006 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, January 2007, p. 141.

113 OMB, 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, June 24, 2011, p. 33.

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EPA’s National Primary Drinking Water Regulations: Stage 2 Disinfection

Byproducts Rule (FY2006), with estimated costs of at least $100 million

annually;114

U.S. Department of Health and Human Services’ (DHHS’s) Health Insurance

Reform; Modifications to the Health Insurance Portability and Accountability Act

(HIPAA) Electronic Transaction Standards (FY2009), with estimated costs of

$1.1 billion per year;115

EPA’s National Emission Standards for Hazardous Air Pollutants from Coal- and

Oil-Fired Electric Utility Steam Generating Units and Standards for Performance

for Electric Utility Steam Generating Units (FY2012), with estimated costs of

$8.2 billion annually;116

U.S. Department of Agriculture’s (USDA’s) Nutrition Standards in the National

School Lunch and School Breakfast Programs (FY2012, FY2013, and FY2016),

with estimated costs of $479 million annually in 2012. CBO was unable to fully

quantify the rule’s costs in FY2013 and FY2016;117 and

DHHS’s Patient Protection and Affordable Care Act; Benefit and Payment

Parameters for 2014 (issued in FY2013), 2015 (issued in FY2014), 2016 (issued

in FY2015), and 2017 (issued in FY2016).118 Although DHHS was unable to

quantify the user fees that will be associated with these three rules, CBO found

that the combined administrative cost and user fee impact for each of them may

be high enough to constitute a state, local, or tribal government mandate (or a

private-sector mandate) under UMRA.119

114 OMB, 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance

with the Unfunded Mandates Reform Act, December 23, 2016, pp. 34-35.

115 OMB, 2010 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, July 2010, pp. 77-78.

116 OMB, 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, May 2014, p. 80.

117 OMB, 2013 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, p. 80.

118 OMB, 2016 Draft Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance

with the Unfunded Mandates Reform Act, December 23, 2016, p. 36; and OMB, 2018, 2019, 2020 Draft Report to

Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the Unfunded Mandates

Reform Act, December 23, 2019, p. 14.

119 The Department of Health and Human Services’ Standards for Privacy of Individually Available Health

Information, issued in 2001, was identified by CBO as costing state and local governments $240 million annually, but

the rule was later determined not to be an enforceable duty as defined under UMRA. The Department of Homeland

Security’s (DHS’s) Chemical Facility Anti-Terrorism Standards Rule, issued in 2007, was identified as having the

potential to require certain municipalities that own and/or operate power generating facilities to purchase security

enhancements. However, DHS was unable to determine whether the rule would impose an enforceable duty on state

and local governments of $100 million or more (adjusted for inflation) in any one year. OMB includes the rule as a

state and local government mandate meeting UMRA’s requirements “for the sake of completeness.” The Department of

Labor’s Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and

Computer Employees (FY2016 and FY2019) revised and indexed for inflation salary thresholds for determining

overtime requirements for salaried workers. CBO found that employee enumeration impacts and compliance costs were

estimated to be well over $100 million annually and that, in addition to private sector industries, some local

government entities will be substantially affected by the rule.

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Impact on the Rulemaking Process

In 1997, Senators Fred Thompson and John Glenn, chair and ranking minority member of the

Senate Committee on Governmental Affairs, respectively, asked GAO to review federal agencies’

implementation of UMRA’s Title II. On February 4, 1998, GAO issued its report, concluding that

“our review of federal agencies’ implementation of Title II of UMRA indicates that this title of

the act has had little direct effect on agencies’ rulemaking actions during the first 2 years of its

implementation.”120

GAO concluded that Title II had limited impact on agencies’ rulemaking primarily because of its

limited coverage. For example, GAO noted that written mandate cost estimate statements were

not on file at CBO for 80 of the 110 economically significant rules published in the Federal

Register between March 22, 1995, and March 22, 1997. GAO examined the 80 economically

significant rules that lacked a written mandate cost estimate statement and concluded that UMRA

did not require a written mandate cost estimate statement for 78 of them because the rule either

did not have an associated notice of proposed rulemaking (18 instances); did not impose an

enforceable duty (3 instances); imposed such a duty but only as a condition of federal assistance

(33 instances); imposed such a duty but only as part of a voluntary program (11 instances); did

not involve an expenditure of $100 million in any single year by the private sector or by state,

local, and tribal governments (12 instances); or incorporated requirements specifically set forth in

law (1 instance). GAO concluded that written mandate cost estimate statements should have been

filed at CBO for two of the rules that lacked one, but, in both instances, the rules appeared to

satisfy UMRA’s written statement requirements.121

Even where UMRA applied, GAO concluded that the act did not appear to have had much effect

on federal agencies’ rulemaking actions because UMRA does not require agencies to take the

actions required in the statute if the agencies determine that the actions are duplicative of other

actions or that accurate estimates of the rule’s future compliance costs are not feasible.122 Because

federal agencies’ rules commonly contain an estimate of compliance costs, GAO found that most

agencies rarely prepared a separate UMRA written cost estimate statement. Moreover, Executive

Order 12866, which was issued more than a year before UMRA’s enactment, already required

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

significant rules. GAO also concluded that UMRA did not substantially change agencies’

intergovernmental consultation processes.123

In 2001, OMB’s director, Mitchell L. Daniels Jr., acknowledged at a House hearing coinciding

with UMRA’s fifth anniversary that UMRA’s Title II had not resulted in major changes in federal

agency rulemaking. He noted that, according to OMB’s five annual reports to Congress on the

implementation of Title II, 80 rules had required the preparation of a separate written mandate

cost estimate statement (see Table 4). He said that “it was hard to believe that only 80 regulations

had significant impacts on state, local, or tribal governments, or the private sector. In fact, it

appears that agencies have attempted to limit their consultative processes, and ignored potential

alternative remedies, by aggressively utilizing the exemptions outlined by the Act.”124 He added

120 GAO, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, GAO-GDD-98-30,

February 4, 1998, p. 29, at http://www.gao.gov/assets/230/225165.pdf.

121 GAO, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, pp. 12-16.

122 GAO, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, p. 28.

123 GAO, Unfunded Mandates: Reform Act Has Had Little Effect on Agencies’ Rulemaking Actions, pp. 21, 22.

124 Joint Hearing, U.S. Congress, House Committee on Government Reform, Subcommittee on Energy Policy, Natural

Resources and Regulatory Affairs, and House Committee on Rules, Subcommittee on Technology and the House,

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that “when agencies fail to solicit or consider the views of states and localities, they deny

themselves the benefit of state and local innovation and experience. This will not be accepted

practice in this [George W. Bush] Administration.”125

In 2004, GAO released a second study of UMRA’s implementation of Title II (and the first for

Title I), focusing on statutes enacted and rules published during 2001 and 2002. GAO found that

5 of 377 statutes enacted and 9 of 122 major or economically significant final rules issued in 2001

or 2002 were identified as containing federal mandates at or above UMRA’s thresholds.126 GAO

concluded its report by stating that “the findings raise the question of whether UMRA’s

procedures, definitions, and exclusions adequately capture and subject to scrutiny federal

statutory and regulatory actions that might impose significant financial burdens on affected

nonfederal parties.”127

As noted, in 2005, GAO sought and received input from participating parties about UMRA’s

strengths and weaknesses and potential options for reinforcing the strengths or addressing the

weaknesses. It also held a symposium on federal mandates to examine those identified strengths

and weaknesses in more depth.128 Although the symposium’s participants viewed UMRA’s

coverage as its most significant issue, GAO reported that comments received concerning federal

agency consultation with state and local governments under Title II “focused on the quality of

consultations across agencies, which was viewed as inconsistent” and that “a few parties

commented that UMRA had improved consultation and collaboration between federal agencies

and nonfederal levels of government.”129

At a Senate hearing held on April 14, 2005, OIRA’s director, John Graham, testified that OMB

includes summaries of agency consultations with state and local government officials in its

annual report to Congress and that “this year’s report shows an increased level of engagement.”130

He added that there were “some very good examples of consultation that are documented in that

report at the Department of Education, the Environmental Protection Agency and so forth, but I

think that it would be fair to say that those best practices are not necessarily uniform across the

federal government or across any particular agency.”131 State and local government officials

Unfunded Mandates: A Five Year Review and Recommendations for Change, hearing on the Unfunded Mandates

Reform Act of 1995, 107th Cong., 1st sess., May 24, 2001, H. Hrg. 107-19 (Washington: GPO, 2001), p. 40.

125 Joint Hearing, U.S. Congress, House Committee on Government Reform, Subcommittee on Energy Policy, Natural

Resources and Regulatory Affairs, and House Committee on Rules, Subcommittee on Technology and the House,

Unfunded Mandates: A Five Year Review and Recommendations for Change, p. 40.

126 GAO, Unfunded Mandates: Analysis of Reform Act Coverage, GAO-04-637, May 12, 2004, pp. 4, 28-33, at

http://www.gao.gov/new.items/d04637.pdf.

127 GAO, Unfunded Mandates: Analysis of Reform Act Coverage, pp. 36, 37.

128 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, pp. 3, 4, at http://www.gao.gov/new.items/d05454.pdf.

129 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

p. 20.

130 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of

Government Management, the Federal Workforce, and the District of Columbia, Passing the Buck: A Review of the

Unfunded Mandates Reform Act, hearing on the Unfunded Mandates Reform Act, 109th Cong., 1st sess., April 14, 2005,

S. Hrg. 109-82 (Washington: GPO, 2005), p. 52.

131 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of

Government Management, the Federal Workforce, and the District of Columbia, Passing the Buck: A Review of the

Unfunded Mandates Reform Act, p. 16.

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testifying at the hearing stated that federal agency consultation had improved somewhat, but

remained “sporadic.”132

Congressional Issues for Title II

Exemptions and Exclusions

State and local government public interest groups continue to advocate a broadening of Title II’s

coverage. For example, as mentioned, they advocate a broader definition of what UMRA

considers a mandate, under the presumption that a broader definition would subject more rules to

Title II. An alternative approach would be to separate debates concerning the definition of

“mandate” and UMRA’s coverage, and, instead, apply Title II’s information requirements to

whatever classes of federally induced costs Congress deems appropriate to cover. This approach

might be implemented by incorporating coverage of various kinds of “federally induced costs,”

adopting the terminology proposed earlier by ACIR. In either case, inasmuch as Title II’s

requirements are informational only, their extension to new classes of regulations, or to new kinds

of federally induced costs, would not affect the authority of agencies to issue regulations or the

substance of the regulations that could be issued.

As mentioned, UMRA’s threshold for federal mandates in rules is limited to expenditures, in

contrast to the thresholds in Title I that refer to direct costs. H.R. 701, the Unfunded Mandates

Information and Transparency Act of 2021, and S. 170, its Senate companion bill, would broaden

UMRA’s coverage to include both direct and “reasonably foreseeable” indirect costs, such as

revenues lost due to a major rule. The bills also would make private-sector mandates subject to a

substantive point of order and remove UMRA’s exemption for rules issued by most independent

agencies.

State and local government advocacy groups have also argued that Title II should apply to rules

issued by independent regulatory agencies.133 Although OMB does not review rules issued by

independent regulatory agencies, in recent years it has included information concerning

independent regulatory agency rules in its annual UMRA report to Congress. According to those

reports, independent regulatory agencies issued 312 major rules from FY1997 through

FY2019.134 As mentioned, H.R. 701 and S. 170 would remove UMRA’s exemption for rules

issued by most independent agencies.135

132 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of

Government Management, the Federal Workforce, and the District of Columbia, Passing the Buck: A Review of the

Unfunded Mandates Reform Act, pp. 22, 23, 27.

133 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of

Government Management, the Federal Workforce, and the District of Columbia, Passing the Buck: A Review of the

Unfunded Mandates Reform Act, hearing on the Unfunded Mandates Reform Act, 109th Cong., 1st sess., April 14, 2005,

S. Hrg. 109-82 (Washington: GPO, 2005), pp. 112-126, 167-174.

134 OMB, 2007 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, June 2008, p. 16; OMB, 2014 Report to Congress on the Benefits and Costs of Federal

Regulations, June 2015, p. 106; OMB, 2017 Draft Report to Congress on the Benefits and Costs of Federal Regulations

and Agency Compliance with the Unfunded Mandates Reform Act, February 23, 2018, pp. 90, 91; and OMB, 2018,

2019, 2020 Report to Congress on the Benefits and Costs of Federal Regulations and Agency Compliance with the

Unfunded Mandates Reform Act, no date provided, pp. 4, 19.

135 Both bills would retain the exemption for rules that concern monetary policy proposed or implemented by the Board

of Governors of the Federal Reserve System, the Federal Open Market Committee, or the Bureau of Consumer

Financial Protection.

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The National Association of Counties (NACO) and other state and local government public

interest groups have also advocated a strengthening of OMB’s role in the enforcement of Title II

to ensure consistent application of UMRA’s provisions across federal agencies.136 For example,

NCSL’s current policy statement on unfunded mandates recommends that UMRA be amended to

include “the creation of an office within the Office of Management and Budget that is analogous

to the State and Local Government Cost Estimates Unit at the Congressional Budget Office.”137

Business organizations, led by the U.S. Chamber of Commerce, also have advocated an

independent review of federal agency cost estimates, recommending that the reviews be

conducted by OMB or GAO. They also have advocated the permitting of early judicial challenges

to an agency’s failure to complete an UMRA cost estimate statement or for completing one that is

deficient.138

During the 112th Congress, H.R. 214, the Congressional Office of Regulatory Analysis Creation

and Sunset and Review Act of 2011, would have created a Congressional Office of Regulatory

Analysis.139 The bill included a provision that would have transferred from CBO’s director to the

director of the proposed Congressional Office of Regulatory Analysis the responsibility to

compare federal agency estimates of the cost of regulations implementing an act containing a

federal mandate with the CBO’s estimate of those costs. The Congressional Office of Regulatory

Analysis would also have received federal agency statements that accompany significant

regulatory actions.

As mentioned, organizations representing various environmental and social groups have argued

that UMRA has achieved its stated goals of strengthening the partnership between the federal

government and state, local, and tribal governments by promoting informed and deliberate

decisions by Congress on the appropriateness of federal mandates. In their view, broadening

UMRA’s coverage would dilute its impact. For example, a participant at GAO’s 2005 symposium

on federal mandates argued that eliminating any of UMRA’s exclusions and exemptions might

make the identification of mandates less meaningful, saying “The more red flags run up, the less

important the red flag becomes.”140 Also, some of the participants at the symposium from the

academic, policy research institute, and public interest advocacy sectors argued that it was

essential that some of the existing exclusions, such as those dealing with constitutional and

statutory rights barring discrimination against various groups, be retained. They also advocated

136 U.S. Congress, Senate Committee on Homeland Security and Governmental Affairs, Subcommittee on Oversight of

Government Management, the Federal Workforce, and the District of Columbia, Passing the Buck: A Review of the

Unfunded Mandates Reform Act, hearing on the Unfunded Mandates Reform Act, 109th Cong., 1st sess., April 14, 2005,

S. Hrg. 109-82 (Washington: GPO, 2005), p. 124.

137 National Conference of State Legislatures, “State and Federal Budgeting: Federal Mandate Relief,” at

http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,20,632#FederalMandate.

138 Joint Hearing, U.S. Congress, House Committee on Government Reform, Subcommittee on Energy Policy, Natural

Resources and Regulatory Affairs, and House Committee on Rules, Subcommittee on Technology and the House,

Unfunded Mandates: A Five Year Review and Recommendations for Change, hearing on the Unfunded Mandates

Reform Act of 1995, 107th Cong., 1st sess., May 24, 2001, H. Hrg. 107-19 (Washington: GPO, 2001), pp. 80, 88, 89.

139 H.R. 214, the Congressional Office of Regulatory Analysis Creation and Sunset and Review Act of 2011, was

introduced on January 7, 2011, and referred to the House Committee on the Judiciary and House Committee on

Oversight and Government Reform. The bill was later referred to the House Committee on the Judiciary’s

Subcommittee on Courts, Commercial and Administrative Law and the House Committee on Oversight and

Government Reform’s Subcommittee on Regulatory Affairs, Stimulus Oversight and Government Spending.

140 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

GAO-05-454, March 31, 2005, p. 13, at http://www.gao.gov/new.items/d05454.pdf.

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additional exclusions to include federal actions regarding public health, safety, environmental

protection, workers’ rights, and the disabled.141

Federal Agency Consultation Requirements

State and local government public interest groups assert that enhanced requirements for federal

agency consultation with state and local government officials during the rulemaking process are

needed.142 For example, the NCSL has asserted that federal agency “consultation with state and

local governments in the construction of these rules is haphazard.”143 It recommends that Title II

be amended to include “enhanced requirements for federal agencies to consult with state and local

governments.”144

OMB asserts that “federal agencies have been actively consulting with states, localities, and tribal

governments in order to ensure that regulatory activities were conducted consistent with the

requirements of UMRA.”145 In addition, OMB notes that it has had guidelines in place since

September 21, 1995, to assist federal agencies in complying with the act.146 The current

guidelines suggest that (1) intergovernmental consultations should take place as early as possible,

beginning before issuance of a proposed rule and continuing through the final rule stage, and be

integrated explicitly into the rulemaking process; (2) agencies should consult with a wide variety

of state, local, and tribal officials; (3) agencies should estimate direct benefits and costs to assist

with these consultations; (4) the scope of consultation should reflect the cost and significance of

the mandate being considered; (5) effective consultation requires trust and significant and

sustained attention so that all who participate can enjoy frank discussion and focus on key

priorities; and (6) agencies should seek out state, local, and tribal views on costs, benefits, risks,

and alternative methods of compliance, and whether the federal rule will harmonize with and not

duplicate similar laws in other levels of government.147

OMB often includes summaries of selected consultation activities by agencies whose actions

affect state, local, and tribal governments in its annual draft and final UMRA reports to Congress.

OMB has argued that the summaries are an indication that federal agencies are complying with

the act. For example, in OMB’s final 2015 UMRA report to Congress, OMB wrote in the

introduction to these summaries:

Four agencies subject to UMRA (the Departments of Energy, Health and Human Services,

Interior, and Labor) provided examples of consultation activities that involved State, local,

and tribal governments not only in their regulatory processes, but also in their program

planning and implementation phases. These agencies have worked to enhance the

141 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

p. 13.

142 National Conference of State Legislatures, “State and Federal Budgeting: Federal Mandate Relief,” at

http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,20,632#FederalMandate.

143 National Conference of State Legislatures, “Policy Position on Federal Mandate Relief,” effective through August

2011.

144 National Conference of State Legislatures, “State and Federal Budgeting: Federal Mandate Relief,” at

http://www.ncsl.org/Default.aspx?TabID=773&tabs=855,20,632#FederalMandate.

145 OMB, 2011 Report to Congress on the Benefits and Costs of Federal Regulations and Unfunded Mandates on State,

Local, and Tribal Entities, June 24, 2011, p. 93.

146 OMB, Agency Compliance with Title II of the Unfunded Mandates Reform Act of 1995: 4 th Annual Report to

Congress from the Director of the Office of Management and Budget, October 1999, p. 2.

147 OMB, 2015 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, March 2016, p. 73.

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regulatory environment by improving the way in which the Federal Government relates to

its intergovernmental partners. Many of the departments and agencies not listed here (i.e.,

the Departments of Justice, State, Treasury, and Veterans Affairs, the Small Business

Administration, and the General Services Administration) do not often impose mandates

upon States, localities, or tribes, and thus have fewer occasions to consult with these

governments. Other agencies, such as the National Archives and Records Administration,

are exempt from UMRA’s reporting requirements, but may nonetheless engage in

consultation where their activities would affect State, local, and Tribal governments.

As the following descriptions indicate, Federal agencies conduct a wide range of

consultations. Agency consultations sometimes involve multiple levels of government,

depending on the agency’s understanding of the scope and impact of its rule or policy.148

As mentioned, H.R. 701 and S. 170 would require federal agencies to enhance their consultation

with UMRA stakeholders.

Concluding Observations

In 1995, UMRA’s enactment was considered an historic, milestone event in the history of

American intergovernmental relations. For example, when signing UMRA, President Bill Clinton

said,

Today, we are making history. We are working to find the right balance for the 21 st century.

We are recognizing that the pendulum had swung too far, and that we have to rely on the

initiative, the creativity, the determination, and the decisionmaking of people at the State

and local level to carry much of the load for America as we move into the 21 st century.149

Since UMRA’s enactment, parties participating in its implementation and researchers in the

academic community, policy research institutes, and nonpartisan government agencies have

reached different conclusions concerning the extent of UMRA’s impact on intergovernmental

relations and whether UMRA should be amended. State and local government officials and

federalism scholars generally view UMRA as having a limited, though positive, impact on

intergovernmental relations. In their view, the federal government has continued to expand its

authority through the “carrots” of increased federal assistance and the “sticks” of grant

conditions, preemptions, mandates, and administrative rulemaking. Facing what they view as a

seemingly ever growing federal influence in American governance, they generally advocate a

broadening of UMRA’s coverage to enhance its impact, emphasizing the need to include

conditions of grant assistance and a broader range of federal agency rulemaking, including rules

issued by independent regulatory agencies.

Other organizations, representing various environmental and social groups, argue that UMRA’s

coverage does not need to be broadened. In their view, UMRA has accomplished its goals of

fostering improved intergovernmental relations and ensuring that when Congress votes on major

federal mandates it is aware of the costs imposed by the legislation. They assert that UMRA’s

current limits on coverage should be maintained or reinforced by adding exclusions for mandates

regarding public health, safety, workers’ rights, environmental protection, and the disabled.150

148 OMB, 2015 Report to Congress on the Costs and Benefits of Regulations and Unfunded Mandates on State, Local,

and Tribal Entities, p. 99.

149 President Bill Clinton, “Remarks on Signing the Unfunded Mandates Reform Act of 1995,” Weekly Compilation of

Presidential Documents, vol. 31, no. 12 (March 22, 1995), p. 455.

150 GAO, Unfunded Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and Options for Improvement,

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During the 111th Congress, UMRA received increased attention as Congress considered various

proposals to reform health care. Governors, for example, expressed opposition to proposals that

would have required states to contribute toward the cost of expanding Medicaid eligibility,

asserting that the expansion could inflate state deficits and impose on states what Tennessee

Governor Philip Bredesen reportedly described as the “mother of all unfunded mandates.”151 As

mentioned, at that time, CBO had determined that UMRA provisions did not apply to Medicaid’s

conditions of federal assistance because, in its view, states had “significant flexibility to make

programmatic adjustments in their Medicaid programs to accommodate” new federal

requirements.152 Following the Supreme Court’s ruling in National Federation of Independent

Business (NFIB) v. Sebelius (June 28, 2012), CBO indicated that UMRA’s provisions may apply

to changes in “the stringency of conditions” or reductions in funding for “certain large mandatory

programs … if the affected governments lack the flexibility to alter the programs.”153

As discussed, H.R. 701 and S. 170 would

require federal agencies to prepare and publish in the Federal Register an initial

and final regulatory impact analysis before promulgating any proposed or final

major rule. This would prevent federal agencies from forgoing an UMRA

analysis by publishing a major rule without first issuing a notice of proposed

rulemaking;

require federal agencies to meet enhanced levels of consultation with state, local,

and tribal governments and the private sector before issuing a notice of proposed

rulemaking or a final rule;

require the initial and final regulatory impact analysis to provide a description of

the agency’s consultation with elected representatives of each affected state,

local, or tribal government and examine, among other things: (1) the rule’s

anticipated costs and benefits; (2) a reasonable number of regulatory alternatives,

including those that require no federal action, use incentives and market-based

means to encourage the desired behavior, and permit the greatest flexibility in

achieving the rule’s objectives; (3) any disproportionate budgetary effects on any

region, state, local, or tribal government, type of community, including urban or

rural communities, or specific segments of the private sector; and (4) the rule’s

effect on job creation or loss;

require federal agencies to select the regulatory alternative that maximizes net

benefits, taking into consideration only the costs and benefits that arise within the

scope of the statutory provision that authorizes the rulemaking;

broaden UMRA’s coverage to include assessments of indirect as well as direct

costs by amending the definition of costs to include any reasonably foreseeable

indirect costs, including revenues lost as a result of a major rule;

GAO-05-454, March 31, 2005, pp. 5-7, 9-14, at http://www.gao.gov/new.items/d05454.pdf.

151 Robert Pear and David M. Herszenhorn, “Senators Hear Concerns Over Costs of Health Proposal,” The New York

Times, August 6, 2009, at http://www.nytimes.com/2009/08/07/health/policy/07health.html?hpw; Clifford Krauss,

Governors Fear Added Costs in Health Care Overhaul, The New York Times, August 6, 2009, at

http://www.nytimes.com/2009/08/07/business/07medicaid.html; and Chas Sisk, “Tennessee Gov. Bredesen takes lead

role in fight over health costs,” The Tennessean, August 18, 2009.

152 CBO, “Cost Estimate for the Patient Protection and Affordable Care Act,” November 18, 2009, p. 18, at

http://www.cbo.gov/ftpdocs/107xx/doc10731/Reid_letter_11_18_09.pdf.

153 CBO, “CBO’s Activities Under the Unfunded Mandates Reform Act,” at https://www.cbo.gov/publication/51335.

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expand the scope of reporting requirements to include regulations imposed by

most independent regulatory agencies; and

make private-sector mandates subject to a substantive point of order.

Advocates argue that these reforms will “improve the quality of congressional deliberations and

... enhance the ability of Congress, federal agencies, and the public to identify federal mandates

that may impose undue harm on state, local, and tribal governments and the private sector.”154

Opponents argue that these reforms are “an assault on the nation’s health, safety, and

environmental protections, would erect new barriers to unnecessarily slow down the regulatory

process, and would give regulated industries an unfair advantage to water down consumer

protections.”155

Underlying disagreements over UMRA’s future are fundamentally different values concerning

American federalism. One view emphasizes the importance of freeing state and local government

officials from the constraints brought about by the directives and costs associated with federal

mandates so they can experiment with innovative ways to achieve results with greater efficiency

and cost effectiveness. This view focuses on the positive effect active state and local governments

can have in promoting a sense of state and community responsibility and self-reliance,

encouraging participation and civic responsibility by allowing more people to become involved in

public questions, adapting public programs to state and local needs and conditions, and reducing

the political turmoil that sometimes results from single policies that govern the entire nation.156

Another view emphasizes the federal government’s responsibility to ensure that all citizens are

afforded minimum levels of essential government services. This view focuses on the propensity

of states to restrict governmental services because they compete with one another for businesses

and taxpaying residents; the variation in state fiscal capacities that makes it difficult for some

states to provide certain governmental services even though they might have the political will to

do so; and the propensity of states to have different views concerning what services are essential

and what constitutes a sufficient level of essential government services.157

Given these disagreements over fundamental values, it is perhaps not surprising that there are

differences of opinion concerning UMRA’s future. Using President Clinton’s words, debates over

UMRA’s future are more than just arguments over who will pay for what; they are also about

finding “the right balance” for American federalism in the 21st century.

154 U.S. Congress, House Committee on Oversight and Government Reform, Unfunded Mandates Information and

Transparency Act of 2015, report to accompany H.R. 50, 114th Cong., 1st sess., February 2, 2015, H.Rept. 114-11

(Washington: GPO, 2015), p. 2.

155 U.S. Congress, House Committee on Oversight and Government Reform, Unfunded Mandates Information and

Transparency Act of 2015, p. 37.

156 Thomas R. Dye, Understanding Public Policy, 6th edition (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1987), p.

301.

157 Thomas R. Dye, Understanding Public Policy, p. 300; ACIR, Categorical Grants: Their Role and Design

(Washington, DC: ACIR, 1978), pp. 50-58; and Claude E. Barfield, Rethinking Federalism: Block Grants and Federal,

State, and Local Responsibilities (Washington, DC: American Enterprise Institute, 1981), pp. 4-8.

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Appendix A. The Rise of Unfunded Mandates as a

National Issue

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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