UMRA (Contents)
Unfunded Mandates Reform Act of 1995
Section 101
sec. 101. legislative mandate accountability and reform.
(a) In General.—Title IV of the Congressional Budget and Impoundment Control Act of 1974 is amended by—
(1) inserting before section 401 the following:
‘‘Part A—General Provisions”; and
(2) adding at the end thereof the following new part: [1]
“Part B—Federal Mandates
“sec. 421. definitions.[2]
“For purposes of this part:
“(1) Agency.—The term ‘agency’ has the same meaning as defined in section 551(1) of title 5, United States Code, but does not include independent regulatory agencies.
“(2) Amount.—The term ‘amount’, with respect to an authorization of appropriations for Federal financial assistance, means the amount of budget authority for any Federal grant assistance program or any Federal program providing loan guarantees or direct loans.
“(3) Direct costs.—The term ‘direct costs’—
“(A)(i) in the case of a Federal intergovernmental mandate, means 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; or
“(ii) in the case of a provision referred to in paragraph (5)(A)(ii), means the amount of Federal financial assistance eliminated or reduced;
“(B) in the case of a Federal private sector mandate, means the aggregate estimated amounts that the private sector will be required to spend in order to comply with the Federal private sector mandate;
“(C) shall be determined on the assumption that—
“(i) State, local, and tribal governments, and the private sector will take all reasonable steps necessary to mitigate the costs resulting from the Federal mandate, and will comply with applicable standards of practice and conduct established by recognized professional or trade associations; and
“(ii) reasonable steps to mitigate the costs shall not include increases in State, local, or tribal taxes or fees; and
“(D) shall not include—
“(i) estimated amounts that the State, local, and tribal governments (in the case of a Federal intergovernmental mandate) or the private sector (in the case of a Federal private sector mandate) would spend—
“(I) to comply with or carry out all applicable Federal, State, local, and tribal laws and regulations in effect at the time of the adoption of the Federal mandate for the same activity as is affected by that Federal mandate; or
“(II) to comply with or carry out State, local, and tribal governmental programs, or private-sector business or other activities in effect at the time of the adoption of the Federal mandate for the same activity as is affected by that mandate; or
“(ii) expenditures to the extent that such expenditures will be offset by any direct savings to the State, local, and tribal governments, or by the private sector, as a result of—
“(I) compliance with the Federal mandate; or
“(II) other changes in Federal law or regulation that are enacted or adopted in the same bill or joint resolution or proposed or final Federal regulation and that govern the same activity as is affected by the Federal mandate.
“(4) Direct savings.—The term ‘direct savings’, when used with respect to the result of compliance with the Federal mandate—
“(A) in the case of a Federal intergovernmental mandate, means the aggregate estimated reduction in costs to any State, local, or tribal government as a result of compliance with the Federal intergovernmental mandate; and
“(B) in the case of a Federal private sector mandate, means the aggregate estimated reduction in costs to the private sector as a result of compliance with the Federal private sector mandate.
“(5) Federal intergovernmental mandate.—The term ‘Federal intergovernmental mandate’ means—
“(A) any provision in legislation, statute, or regulation that—
“(i) would impose an enforceable duty upon State, local, or tribal governments, except—
“(I) a condition of Federal assistance; or
“(II) a duty arising from participation in a voluntary Federal program, except as provided in subparagraph (B)); or
“(ii) would reduce or eliminate the amount of authorization of appropriations for—
“(I) Federal financial assistance that would be provided to State, local, or tribal governments for the purpose of complying with any such previously imposed duty unless such duty is reduced or eliminated by a corresponding amount; or
“(II) the control of borders by the Federal Government; or reimbursement to State, local, or tribal governments for the net cost associated with illegal, deportable, and excludable aliens, including court-mandated expenses related to emergency health care, education or criminal justice; when such a reduction or elimination would result in increased net costs to State, local, or tribal governments in providing education or emergency health care to, or incarceration of, illegal aliens; except that this subclause shall not be in effect with respect to a State, local, or tribal government, to the extent that such government has not fully cooperated in the efforts of the Federal Government to locate, apprehend, and deport illegal aliens;
“(B) any provision in legislation, statute, or regulation that relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and tribal governments under entitlement authority, if the provision—
“(i)(I) would increase the stringency of conditions of assistance to State, local, or tribal governments under the program; or
“(II) would place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide funding to State, local, or tribal governments under the program; and
“(ii) the State, local, or tribal governments that participate in the Federal program 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.
“(6) Federal mandate.—The term ‘Federal mandate’ means a Federal intergovernmental mandate or a Federal private sector mandate, as defined in paragraphs (5) and (7).
“(7) Federal private sector mandate.—The term ‘Federal private sector mandate’ means any provision in legislation, statute, or regulation that—
“(A) would impose an enforceable duty upon the private sector except—
“(i) a condition of Federal assistance; or
“(ii) a duty arising from participation in a voluntary Federal program; or
“(B) would reduce or eliminate the amount of authorization of appropriations for Federal financial assistance that will be provided to the private sector for the purposes of ensuring compliance with such duty.
“(8) Local government.—The term ‘local government’ has the same meaning as defined in section 6501(6) of title 31, United States Code.
“(9) Private sector.—The term ‘private sector’ means all persons or entities in the United States, including individuals, partnerships, associations, corporations, and educational and nonprofit institutions, but shall not include State, local, or tribal governments.
“(10) Regulation; rule.—The term ‘regulation’ or ‘rule’ (except with respect to a rule of either House of the Congress) has the meaning of ‘rule’ as defined in section 601(2) of title 5, United States Code.
“(11) Small government.—The term ‘small government’ means any small governmental jurisdictions defined in section 601(5) of title 5, United States Code, and any tribal government.
“(12) State.—The term ‘State’ has the same meaning as defined in section 6501(9) of title 31, United States Code.
“(13) Tribal government.—The term ‘tribal government’ means any Indian tribe, band, nation, or other organized group or community, including any Alaska Native village or regional or village corporation as defined in or established pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et seq.) which is recognized as eligible for the special programs and services provided by the United States to Indians because of their special status as Indians.
“sec. 422. exclusions.[3]
“This part shall not apply to any provision in a bill, joint resolution, amendment, motion, or conference report before Congress that—
“(1) enforces constitutional rights of individuals;
“(2) establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability;
“(3) requires compliance with accounting and auditing procedures with respect to grants or other money or property provided by the Federal Government;
“(4) provides for emergency assistance or relief at the request of any State, local, or tribal government or any official of a State, local, or tribal government;
“(5) is necessary for the national security or the ratification or implementation of international treaty obligations;
“(6) the President designates as emergency legislation and that the Congress so designates in statute; or
“(7) relates to the old-age, survivors, and disability insurance program under title II of the Social Security Act (including taxes imposed by sections 3101(a) and 3111(a) of the Internal Revenue Code of 1986 (relating to old-age, survivors, and disability insurance)).
“sec. 423. duties of congressional committees.[4]
“(a) In General.—When a committee of authorization of the Senate or the House of Representatives reports a bill or joint resolution of public character that includes any Federal mandate, the re-port of the committee accompanying the bill or joint resolution shall contain the information required by subsections (c) and (d).
“(b) Submission of Bills to the Director.—When a commit-tee of authorization of the Senate or the House of Representatives orders reported a bill or joint resolution of a public character, the committee shall promptly provide the bill or joint resolution to the Di-rector of the Congressional Budget Office and shall identify to the Director any Federal mandates contained in the bill or resolution.
“(c) Reports on Federal Mandates.—Each report described under subsection (a) shall contain—
“(1) an identification and description of any Federal mandates in the bill or joint resolution, including the direct costs to State, local, and tribal governments, and to the private sector, required to comply with the Federal man-dates;
“(2) a qualitative, and if practicable, a quantitative assessment of costs and benefits anticipated from the Federal mandates (including the effects on health and safety and the protection of the natural environment); and
“(3) a statement of the degree to which a Federal mandate affects both the public and private sectors and the extent to which Federal payment of public sector costs or the modification or termination of the Federal mandate as provided under section 425(a)(2) would affect the competitive balance between State, local, or tribal governments and the private sector including a description of the actions, if any, taken by the committee to avoid any adverse impact on the private sector or the competitive balance between the public sector and the private sector.
“(d) Intergovernmental Mandates.—If any of the Federal mandates in the bill or joint resolution are Federal intergovernmental mandates, the report required under subsection (a) shall also contain—
“(1)(A) a statement of the amount, if any, of increase or decrease in authorization of appropriations under existing Federal financial assistance programs, or of authorization of appropriations for new Federal financial assistance, provided by the bill or joint resolution and usable for activities of State, local, or tribal governments subject to the Federal intergovernmental mandates;
“(B) a statement of whether the committee intends that the Federal intergovernmental mandates be partly or entirely unfunded, and if so, the reasons for that intention; and
“(C) if funded in whole or in part, a statement of whether and how the committee has created a mechanism to allocate the funding in a manner that is reasonably consistent with the expected direct costs among and between the respective levels of State, local, and tribal government; and
“(2) any existing sources of Federal assistance in addition to those identified in paragraph (1) that may assist State, local, and tribal governments in meeting the direct costs of the Federal intergovernmental mandates.
“(e) Preemption Clarification and Information.—When a committee of authorization of the Senate or the House of Representatives reports a bill or joint resolution of public character, the committee report accompanying the bill or joint resolution shall contain, if relevant to the bill or joint resolution, an explicit statement on the ex-tent to which the bill or joint resolution is intended to preempt any State, local, or tribal law, and, if so, an explanation of the effect of such preemption.
“(f) Publication of Statement From the Director.—
“(1) In general.—Upon receiving a statement from the Director under section 424, a committee of the Senate or the House of Representatives shall publish the statement in the committee report accompanying the bill or joint resolution to which the statement relates if the statement is available at the time the report is printed.
“(2) Other publication of statement of director.—If the statement is not published in the report, or if the bill or joint resolution to which the statement relates is expected to be considered by the Senate or the House of Representatives before the report is published, the committee shall cause the statement, or a summary thereof, to be published in the Congressional Record in advance of floor consideration of the bill or joint resolution.[5]
“sec. 424. duties of the director; statements on bills and joint resolutions other than appropriations bills and joint resolutions.[6]
“(a) Federal Intergovernmental Mandates in Reported Bills and Resolutions.—For each bill or joint resolution of a public character reported by any committee of authorization of the Senate or the House of Representatives, the Director of the Congressional Budget Office shall prepare and submit to the committee a statement as follows:
“(1) Contents.—If the Director estimates that the direct cost of all Federal intergovernmental mandates in the bill or joint resolution will equal or exceed $50,000,000 (adjusted annually for inflation) in the fiscal year in which any Federal intergovernmental mandate in the bill or joint resolution (or in any necessary implementing regulation) would first be effective or in any of the 4 fiscal years following such fiscal year, the Director shall so state, specify the estimate, and briefly explain the basis of the estimate.
“(2) Estimates.—Estimates required under paragraph (1) shall include estimates (and brief explanations of the basis of the estimates) of—
“(A) the total amount of direct cost of complying with the Federal intergovernmental mandates in the bill or joint resolution;
“(B) if the bill or resolution contains an authorization of appropriations under section 425(a)(2)(B), the amount of new budget authority for each fiscal year for a period not to exceed 10 years beyond the effective date necessary for the direct cost of the intergovernmental mandate; and
“(C) the amount, if any, of increase in authorization of appropriations under existing Federal financial assistance programs, or of authorization of appropriations for new Federal financial assistance, provided by the bill or joint resolution and usable by State, local, or tribal governments for activities subject to the Federal intergovernmental mandates.
“(3) Estimate not feasible.—If the Director determines that it is not feasible to make a reasonable estimate that would be required under paragraphs (1) and (2), the Director shall not make the estimate, but shall report in the statement that the reasonable estimate cannot be made and shall include the reasons for that determination in the statement. If such determination is made by the Director, a point of order under this part shall lie only under section 425(a)(1) and as if the requirement of section 425(a)(1) had not been met.
“(b) Federal Private Sector Mandates in Reported Bills and Joint Resolutions.—For each bill or joint resolution of a public character reported by any committee of authorization of the Senate or the House of Representatives, the Director of the Congressional Budget Office shall prepare and submit to the committee a statement as follows:
“(1) Contents.—If the Director estimates that the direct cost of all Federal private sector mandates in the bill or joint resolution will equal or exceed $100,000,000 (adjusted annually for inflation) in the fiscal year in which any Federal private sector mandate in the bill or joint resolution (or in any necessary implementing regulation) would first be effective or in any of the 4 fiscal years following such fiscal year, the Director shall so state, specify the estimate, and briefly explain the basis of the estimate.
“(2) Estimates.—Estimates required under paragraph (1) shall include estimates (and a brief explanation of the basis of the estimates) of—
“(A) the total amount of direct costs of complying with the Federal private sector mandates in the bill or joint resolution; and
“(B) the amount, if any, of increase in authorization of appropriations under existing Federal financial assistance programs, or of authorization of appropriations for new Federal financial assistance, provided by the bill or joint resolution usable by the private sector for the activities subject to the Federal private sector mandates.
“(3) Estimate not feasible.—If the Director determines that it is not feasible to make a reasonable estimate that would be required under paragraphs (1) and (2), the Director shall not make the estimate, but shall report in the statement that the reasonable estimate cannot be made and shall include the reasons for that determination in the statement.
“(c) Legislation Falling Below the Direct Costs Thresholds.—If the Director estimates that the direct costs of a Federal man-date will not equal or exceed the thresholds specified in subsections (a) and (b), the Director shall so state and shall briefly explain the basis of the estimate.
“(d) Amended Bills and Joint Resolutions; Conference Reports.—If a bill or joint resolution is passed in an amended form (including if passed by one House as an amendment in the nature of a substitute for the text of a bill or joint resolution from the other House) or is reported by a committee of conference in amended form, and the amended form contains a Federal mandate not previously considered by either House or which contains an increase in the direct cost of a previously considered Federal mandate, then the committee of conference shall ensure, to the greatest extent practicable, that the Director shall prepare a statement as provided in this subsection or a supplemental statement for the bill or joint resolution in that amended form.
“sec. 425. legislation subject to point of order.[7]
“(a) In General.—It shall not be in order in the Senate or the House of Representatives to consider—
“(1) any bill or joint resolution that is reported by a committee unless the committee has published a statement of the Director on the direct costs of Federal mandates in accordance with section 423(f) before such consideration, except this paragraph shall not apply to any supplemental statement prepared by the Director under section 424(d); and
“(2) any bill, joint resolution, amendment, motion, or conference report that would increase the direct costs of Federal intergovernmental mandates by an amount that causes the thresholds specified in section 424(a)(1) to be exceeded, unless—
“(A) the bill, joint resolution, amendment, motion, or conference report provides new budget authority or new entitlement authority in the House of Representatives or direct spending authority in the Senate for each fiscal year for such mandates included in the bill, joint resolution, amendment, motion, or conference report in an amount equal to or exceeding the direct costs of such mandate; or
“(B) the bill, joint resolution, amendment, motion, or conference report includes an authorization for appropriations in an amount equal to or exceeding the direct costs of such mandate, and—
“(i) identifies a specific dollar amount of the direct costs of such mandate for each year up to 10 years during which such mandate shall be in effect under the bill, joint resolution, amendment, motion or conference report, and such estimate is consistent with the estimate determined under subsection (e) for each fiscal year;
“(ii) identifies any appropriation bill that is expected to provide for Federal funding of the direct cost referred to under clause (i); and
“(iii)(I) provides that for any fiscal year the responsible Federal agency shall determine whether there are insufficient appropriations for that fiscal year to provide for the direct costs under clause (i) of such mandate, and shall (no later than 30 days after the beginning of the fiscal year) notify the appropriate authorizing committees of Congress of the determination and submit either—
“(aa) a statement that the agency has determined, based on a re-estimate of the direct costs of such mandate, after consultation with State, local, and tribal governments, that the amount appropriated is sufficient to pay for the direct costs of such mandate; or
“(bb) legislative recommendations for either implementing a less costly mandate or making such mandate ineffective for the fiscal year;
“(II) provides for expedited procedures for the consideration of the statement or legislative recommendations referred to in subclause (I) by Congress no later than 30 days after the statement or recommendations are submitted to Congress; and
“(III) provides that such mandate shall—
“(aa) in the case of a statement referred to in subclause (I)(aa), cease to be effective 60 days after the statement is submitted unless Congress has approved the agency’s determination by joint resolution during the 60-day period;
“(bb) cease to be effective 60 days after the date the legislative recommendations of the responsible Federal agency are submitted to Congress under subclause (I)(bb) unless Congress provides otherwise by law; or
“(cc) in the case that such mandate that has not yet taken effect, continue not to be effective unless Congress provides otherwise by law.
“(b) Rule of Construction.—The provisions of subsection (a)(2)(B)(iii) shall not be construed to prohibit or otherwise restrict a State, local, or tribal government from voluntarily electing to remain subject to the original Federal intergovernmental mandate, complying with the programmatic or financial responsibilities of the original Federal intergovernmental mandate and providing the funding necessary consistent with the costs of Federal agency assistance, monitoring, and enforcement.
“(c) Committee on Appropriations.—
“(1) Application.—The provisions of subsection (a)—
“(A) shall not apply to any bill or resolution reported by the Committee on Appropriations of the Senate or the House of Representatives; except
“(B) shall apply to—
“(i) any legislative provision increasing direct costs of a Federal intergovernmental mandate contained in any bill or resolution reported by the Committee on Appropriations of the Senate or House of Representatives;
“(ii) any legislative provision increasing direct costs of a Federal intergovernmental mandate contained in any amendment offered to a bill or resolution reported by the Committee on Appropriations of the Senate or House of Representatives;
“(iii) any legislative provision increasing direct costs of a Federal intergovernmental mandate in a conference report accompanying a bill or resolution reported by the Committee on Appropriations of the Senate or House of Representatives; and
“(iv) any legislative provision increasing direct costs of a Federal intergovernmental mandate contained in any amendments in disagreement between the two Houses to any bill or resolution reported by the Committee on Appropriations of the Senate or House of Representatives.
“(2) Certain provisions stricken in senate.—Upon a point of order being made by any Senator against any provision listed in paragraph (1)(B), and the point of order being sustained by the Chair, such specific provision shall be deemed stricken from the bill, resolution, amendment, amendment in disagreement, or conference report and may not be offered as an amendment from the floor.
“(d) Determinations of Applicability to Pending Legislation.—For purposes of this section, in the Senate, the presiding officer of the Senate shall consult with the Committee on Governmental Affairs, to the extent practicable, on questions concerning the applicability of this part to a pending bill, joint resolution, amendment, motion, or conference report.
“(e) Determinations of Federal Mandate Levels.—For purposes of this section, in the Senate, the levels of Federal mandates for a fiscal year shall be determined based on the estimates made by the Committee on the Budget.
“sec. 426. provisions relating to the house of representatives.[8]
“(a) Enforcement in the House of Representatives.—It shall not be in order in the House of Representatives to consider a rule or order that waives the application of section 425.
“(b) Disposition of Points of Order.—
“(1) Application to the house of representatives.—This subsection shall apply only to the House of Representatives.
“(2) Threshold burden.—In order to be cognizable by the Chair, a point of order under section 425 or subsection (a) of this section must specify the precise language on which it is premised.
“(3) Question of consideration.—As disposition of points of order under section 425 or subsection (a) of this section, the Chair shall put the question of consideration with respect to the proposition that is the subject of the points of order.
“(4) Debate and intervening motions.—A question of consideration under this section shall be debatable for 10 minutes by each Member initiating a point of order and for 10 minutes by an opponent on each point of order, but shall otherwise be decided without intervening motion except one that the House adjourn or that the Committee of the Whole rise, as the case may be.
“(5) Effect on amendment in order as original text.—The disposition of the question of consideration under this subsection with respect to a bill or joint resolution shall be considered also to determine the question of consideration under this subsection with respect to an amendment made in or-der as original text.
“sec. 427. requests to the congressional budget office from senators.[9]
“At the written request of a senator, the director shall, to the extent practicable, prepare an estimate of the direct costs of a Federal intergovernmental mandate contained in an amendment of such Senator.
“sec. 428. clarification of application.[10]
“(a) In General.—This part applies to any bill, joint resolution, amendment, motion, or conference report that reauthorizes appropriations, or that amends existing authorizations of appropriations, to carry out any statute, or that otherwise amends any statute, only if enactment of the bill, joint resolution, amendment, motion, or conference report—
“(1) would result in a net reduction in or elimination of authorization of appropriations for Federal financial assistance that would be provided to State, local, or tribal governments for use for the purpose of complying with any Federal intergovernmental mandate, or to the private sector for use to comply with any Federal private sector mandate, and would not eliminate or reduce duties established by the Federal man-date by a corresponding amount; or
“(2) would result in a net increase in the aggregate amount of direct costs of Federal intergovernmental mandates or Federal private sector mandates other than as described in paragraph (1).
“(b) Direct Costs.—
“(1) In general.—For purposes of this part, the direct cost of the Federal mandates in a bill, joint resolution, amendment, motion, or conference report that reauthorizes appropriations, or that amends existing authorizations of appropriations, to carry out a statute, or that otherwise amends any statute, means the net increase, resulting from enactment of the bill, joint resolution, amendment, motion, or conference report, in the amount described under paragraph (2)(A) over the amount described under paragraph (2)(B).
“(2) Amounts.—The amounts referred to under paragraph (1) are—
“(A) the aggregate amount of direct costs of Federal mandates that would result under the statute if the bill, joint resolution, amendment, motion, or conference report is enacted; and
“(B) the aggregate amount of direct costs of Federal mandates that would result under the statute if the bill, joint resolution, amendment, motion, or conference report were not enacted.
“(3) Extension of authorization of appropriations.—For purposes of this section, in the case of legislation to extend authorization of appropriations, the authorization level that would be provided by the extension shall be compared to the authorization level for the last year in which authorization of appropriations is already provided.”.
(b) Technical and Conforming Amendments.—Section 1(b) of the Congressional Budget and Impoundment Control Act of 1974 is amended—
(1) by inserting ‘‘Part A—General Provisions” before the item relating to section 401; and
(2) by inserting after the item relating to section 407 the following:[11]
“Part B—Federal Mandates
“Sec. 421. Definitions.
“Sec. 422. Exclusions.
“Sec. 423. Duties of congressional committees.
“Sec. 424. Duties of the Director; statements on bills and joint resolutions other than appropriations bills and joint resolutions.
“Sec. 425. Legislation subject to point of order.
“Sec. 426. Provisions relating to the House of Representatives.
“Sec. 427. Requests to the Congressional Budget Office from Senators.
“Sec. 428. Clarification of application.”.
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COUNSEL NOTES
Endnotes
[1] Section 101 of the Unfunded Mandates Reform Act of 1995 (UMRA) added Part B (sections 421 through 428) to the Congressional Budget Act of 1974 (CBA). The text here is the those sections as they appear in UMRA. The sections are subject to amendment after their enactment, so for the most up-to-date text, the sections in the CBA are the authoritative version. These appear here for completeness and the historical record of UMRA 1995.
[5] Note: Only a Member of Congress can “cause” a document to be “published” in the Congressional Record.
[11] This subsection conformed the table of contents of the Congressional Budget and Impoundment Control Act of 1974 for the addition of the new Part B and the additional sections 421 through 428.
JOINT EXPLANATORY STATEMENT OF THE COMMITTEE OF CONFERENCE
The joint statement of managers of the committee of conference on the measure including this description of the new sections 421 through 428 which became Part B of the Congressional Budget Act of 1974:
TITLE I. LEGISLATIVE ACCOUNTABILITY AND REFORM
Sec. 101. Legislative Mandate Accountability and Reform
Section 101 of the Senate Bill adds a new section 408 to the Congressional Budget and Impoundment Control Act of 1974 that establishes new Congressional procedures for the consideration of mandate legislation.
Section 301 of the House Amendment divides Title IV of the Budget Act into two parts. Part A contains all the existing provisions of Title IV of the Budget Act. Part B contains the new procedures for Congressional consideration of mandate legislation.
Section 101 of the Conference Substitute adopts the House framework for amending the Budget Act. It adds new sections 421 through 428 as Part B of the Budget Act.
Sec. 421. Definitions
Section 101(a) of the Senate Bill adds a new Section 408(h) to the Budget Act that defines terms for the purposes of this Act. This subsection defined the following terms: ‘‘Federal intergovernmental mandate’’, ‘‘Federal private sector mandate’’, ‘‘Federal mandate’’, ‘‘Federal mandate direct costs’’, ‘‘amount’’, ‘‘private sector’’, ‘‘local government’’, ‘‘tribal government’’, ‘‘s mall government’’, ‘‘State’’, ‘‘agency’’, ‘‘regulation’’ (or ‘‘rule’’), and ‘‘direct savings’’.
The House Amendment defines a similar list of terms as a new section 421 of the Budget Act with the following differences. The House Amendment does not include in the definition of the term ‘‘Federal Intergovernmental Mandate’’ a reduction or elimination of the amount authorized to be appropriated for the control of borders by the Federal Government or for reimbursement of net costs associated with illegal, deportable, and excludable aliens, unless the State, Local, or tribal government has not fully cooperated with Federal effort s to locate, apprehend, and deport illegal aliens. In the definition of the term ‘‘Federal Mandate Direct Costs,’’ the House Amendment includes the aggregated estimated amounts forgone in revenues in order to comply with a Federal intergovernmental mandate. The House amendment defines ‘‘private sector’’ to include ‘‘business trusts, or legal representatives and organized groups of individuals’’ and excludes from this definition ‘‘all persons or entities in the United States.’’ The House Amendment does not exclude from the definition of ‘‘agency’’ the Office of the Comptroller of the Currency and the Office of Thrift Supervision. The House Amendment does not include a definition of ‘‘amount’’, ‘‘tribal government’’, or ‘‘direct savings’’. The House Amendment includes a definition of ‘‘Director’’, ‘‘Federal Financial Assistance’’, and ‘‘Significant Employment Impact’’.
The Conference Substitute includes the list of definitions in a new section 421 of the Budget Act. The Substitute uses the Senate list of definitions with the House language on revenue forgone and defines the term ‘‘agency’’ as provided in the House Amendment. The Substitute defines the term ‘‘Director’’ in section 3.
The Conference Substitute defines direct costs to include the aggregate amount State, local, and tribal governments would be prohibited for raising in revenue including user fees. The conferees note that the Joint Committee on Taxation is responsible for providing revenue estimates to CBO for legislation that affect s revenues. CBO works closely with the Joint Tax Committee to assure these revenue estimates are reflected in cost estimates. The conferees do not intend to disrupt CBO’s and the Joint Committee’s respective responsibilities and expect the Joint Committee on Taxation will provide Congress with estimates for legislation that prohibits State, local, or tribal governments from raising revenue.
Subsection 5(B) [sic] of the Conference Substitute includes in the definition of an intergovernmental mandate any provision in legislation, statute, or regulation that relates to a then-existing Federal program that would place caps upon, or otherwise decrease, the Federal Government’s responsibility to provide entitlement funding to State, local, or tribal governments under the program. The conferees intend that this definition only apply to caps on individual programs. The conferees do not intend this definition to be applicable to a measure that contains general budgetary limits or caps on spending or categories of spending, unless that measure also contained implementing statutory language for reductions required in specific programs if the budgetary limit or cap were exceeded.
The programs to which this definition relates are Federal entitlement programs that provide $500 million or more annually to State, local and tribal governments. This would currently include only nine programs: Medicaid; AFDC, Child Nutrition; Food Stamps; Social Services Block Grants; Vocational Rehabilitation State Grants; Foster Care, Adoption Assistance and Independent Living; Family Support Payments for Job Opportunities and Basic Skills (JOBS); and, Child Support Enforcement. This subsection would also apply to entitlement programs that Congress may create in the future where Congress provides $500 million or more annually to State, local and tribal governments.
The conferees do not interpret the meaning of ‘‘enforceable duty’’ in subsection (5)(A)(i) and (ii) to include duties and conditions that are part of any voluntary Federal contract for the provision of goods and services.
Sec. 422. Exclusions
Section 101(a) of the Senate Bill adds a new Section 408(g) to the Budget Act that provides the same exclusions as contained in section 4 of S. 1.
Section 301(a) of the House Amendment adds a new section 422 to the Budget Act that provides the same limitations on application as a section 4 of the Amendment.
Section 101(a) of the Conference Substitute adds a new Section 422 to the Budget Act that repeats the same exclusions provided in section 4 of the Substitute.
Sec. 423. Committee reports
Section 101(a) of the Senate Bill adds a new Section 408(a) to the Budget Act that requires an authorizing committee, when it orders reported a public bill or joint resolution (hereafter ‘‘a measure’’) establishing or affecting any Federal mandates, to submit the measure to CBO and identify the mandates involved. The Senate Bill requires that reports by authorizing committees on measures dealing with Federal mandates include the following information on the mandates in the bill: an identification of the mandates, a cost-benefit analysis, the impact on the public and private sector competitive balance, information on Federal funding assistance to cover the cost of the mandate (including how Federal funding will be allocated among different levels of government), the extent to which the bill preempts State, local, or tribal government law, and a CBO cost estimate.
Section 301(a) of the House Amendment adds a new section 423 to the Budget Act that establishes similar requirements for committee reports except the Amendment does not require the report to indicate whether the mandate bill includes a mechanism to allocate funding in accordance with costs to different levels of government.
Section 101(a) of the Conference Substitute adds a new Section 423 to the Budget Act that adopts the Senate’s requirements for reports with technical changes.
Sec. 424. CBO Cost Estimates
Section 101(a) of the Senate Bill adds a new Section 408(b)(1) to the Budget Act that requires CBO to prepare, and submit to the reporting committee, an estimate of the direct costs to the State, local, and tribal governments of Federal intergovernmental mandates in each reported measure (or in necessary implementing regulations). For intergovernmental mandates, CBO is required to prepare estimates if the costs of the mandate would equal at least $50 million in any of the five fiscal years after the mandate’s effective date. For private sector mandates, CBO is required to prepare estimates if the costs of the mandate would equal at least $200 million in any of the five fiscal years after the mandate’s effective date. The Senate bill extends the scope of the estimate to ten years following the mandate’s effective date.
The Senate Bill provides if CBO finds it not feasible to make a reasonable estimate, CBO must report that finding with an explanation. If CBO makes such a determination for an intergovernmental mandate, then a point of order would lie against the reported bill only for failure to contain such an estimate under section 408(c)(1)(A). In such case, the bill as reported would be exempt only from the point of order under section 408(c)(1)(B). Other Budget Act points of order would still lie if applicable.
Section 408(b)(3) of the Senate Bill provides that if direct cost of respective mandates in a measure fall below the thresholds, CBO is to so state, and is to explain briefly the basis of this estimate. Paragraph (4) of this subsection requires a conference committee, under certain circumstances, to ensure that CBO prepare a supplemental estimate on a measure passed by either house in an amended form (including a measure of one house passed by the other with an amendment in the nature of a substitute) or reported from conference in an amended form. The Senate Bill requires such action if the amended form contains a mandate not previously considered by either house or increases the direct cost of a mandate in the measure.
Section 301(a) of the House Amendment adds a new section 424(a) to the Budget Act that establishes similar requirements for CBO cost estimates on mandates. The House Amendment provides the threshold is $50 million for both intergovernmental and private sector mandates. In addition, the Amendment does not limit the scope of the estimate to ten years.
Section 101(a) of the Conference Substitute adds a new Section 424 to the Budget Act that adopts the Senate language on CBO’s responsibilities for preparing estimates on legislation containing intergovernmental and private sector mandates with two changes. The Substitute amends the language the Senate proposed on the scope of CBO cost estimates. If the bill would authorize appropriations and makes an intergovernmental mandate contingent on appropriations as provided in section 425(a)(2)(B) in the Conference Substitute, then CBO is required to provide an estimate of the budget authority needed to pay for the mandate for each fiscal year for a period not to exceed ten years. The Substitute provides a threshold of $100 million for private sector mandates.
Sec. 425. Points of Order Against Unfunded Mandates Point of Order & Mandate Cost Estimates
Section 101(a) of the Senate Bill adds a new Section 408(c)(1)(A) to the Budget Act that establishes a point of order in the Senate against consideration of a reported measure containing a mandate unless the report accompanying the measure contains a CBO cost estimate of the mandate, or the CBO cost estimate has been published in the Congressional Record.
Section 301(a) of the House Amendment adds a new Section 424(a)(1) to the Budget Act that establishes a similar point of order in the Senate and the House against consideration of a reported measure, but provides it does not apply to supplemental estimates prepared by CBO.
Section 101(a) of the Conference Substitute adds a new Section 425(a) to the Budget Act that adopts the House language with minor changes.
Point of Order & Unfunded Mandate Legislation
Section 101(a) of the Senate Bill adds a new Section 408(c)(1)(B) to the Budget Act that establishes a point of order in the Senate against consideration of a bill, joint resolution, amendment, motion, or conference report (hereafter referred to as ‘‘legislation’’) containing intergovernmental mandates exceeding the
thresholds established above, unless the legislation funds these mandates. The Senate bill applies this point of order against legislation that would cause the direct costs of intergovernmental mandates to breach the $50 million annual threshold. The waiver of this point of order and the appeal of rulings regarding this point of order are covered by existing provisions under title IX of the Budget Act. Section 904 provides that in the Senate points of order under title IV of the Budget Act, including the point of order regarding unfunded mandate legislation, can be waived or appealed by a simple majority.
This subparagraph of the Senate Bill provides that legislation is not subject to the point of order if it provides either: (1) direct spending authority equal to the mandate’s costs for each fiscal year; (2) an increase in receipts and an increase in direct spending authority for each fiscal year for those mandates equal to their costs for each fiscal year; or, (3) an authorization of appropriations at least equal to the direct cost and provides a mechanism to ensure that a mandate is effective only to the extent that it is funded in appropriations Acts.
The House Amendment establishes a similar point of order against consideration of legislation in the House and Senate containing intergovernmental mandates. The House amendment differs from the Senate bill on the requirements of funding mechanisms for mandates. Under the House amendment, legislation is subject to the point of order unless it provides: (1) new budget authority or new entitlement authority in the House (or direct spending authority in the Senate) in an amount that equals or exceeds the direct costs of the mandate; (2) an increase in receipts or a decrease in new budget authority or new entitlement authority in the House (a decrease in direct spending authority in the Senate) to offset the costs of spending authority for the mandate; or, (3) an authorization of appropriations at least equal to the direct cost and provides a mechanism to ensure that a mandate never takes effect unless fully funded in appropriations Acts or mandates are scaled back consistent with appropriations levels.
The Conference Substitute adopts the House language with an amendment. The Substitute provides that legislation containing a Federal intergovernmental mandate is out of order in the House and Senate unless it provides either: (1) new budget authority or new entitlement authority in the House (or direct spending authority in the Senate) in an amount that equals or exceeds the direct costs of the mandate; or (2) an authorization of appropriations and a mechanism to assure the mandate is only effective to the extent funding is provided in Appropriations Acts. If legislation funds the mandate to avoid the point of order, it must fund the entire cost of the mandate for each fiscal year.
The Substitute drops language in the House Amendment that provides a mandate could be paid for by an increase in spending authority and offset by a decrease in spending authority or an increase in receipts. This language is unnecessary because other budget laws already would govern how Federal mandates could be financed.
Nothing in the Substitute waives existing provisions of law that establish controls on Federal spending. The Budget Act, budget resolutions adopted pursuant to the Budget Act, and the Balanced Budget and Emergency Deficit Control Act already establish requirements for Federal budgeting. Since these laws already control legislation providing Federal funding, including funding that could be provided to cover a mandate’s direct costs, the conference agreement does not address requirements for offsets to pay for Federal funding for mandates.
The Substitute provides that the point of order can be avoided if the mandate is paid for by either an increase in spending authority outside the appropriations process (new budget authority or new entitlement authority in the House of Representatives and new direct spending authority in the Senate) or is contingent on funding being provided in the appropriations process.
If a Committee chooses to fund a mandate with spending authority outside the appropriations process, this legislation will be subject to the requirements of the Budget Act and the pay-as-yougo provisions of the Balanced Budget and Emergency Deficit Control Act. If a committee chooses to pay for a mandate with an increase in spending authority outside the Appropriations process, there are generally three options under these laws: provide new spending authority that will cause a deficit increase; provide new spending authority and offset it by reducing existing spending authority for other programs; or, provide new spending authority and offset it by increasing receipts. If a committee chooses to make the mandate contingent on funding being provided in Appropriations Acts, the Appropriations Committees will have to fund these mandates within the annual allocations made under section 602 of the Budget Act and the discretionary caps under section 601 of the Budget Act.
Point of Order & the Appropriations Process
Section 101(a) of the Senate Bill adds a new Section 408(c)(1)(B)(iii) to the Budget Act that allows legislation to avoid the unfunded mandate point of order if the mandate is contingent on funding being provided in the appropriations process. More specifically, the legislation would escape the point of order if it: (1) authorizes appropriations in an amount equal to the direct costs of the mandate; (2) specifies the amount of direct costs of the mandate for each year or other period up to ten years during which the mandate will be in effect; (3) identifies any appropriation bill that would be expected to provide funding for direct costs of the mandate; and (4) provides that, if appropriations are insufficient to cover the direct cost of the mandate (as previously calculated by CBO), the mandate will expire unless Congress provides otherwise by law (through expedited procedures).
Section 408(c)(1)(B)(iii)(III) of the Senate Bill requires mandate legislation to include procedures in the event insufficient appropriations are provided to cover the entire direct costs of a Federal intergovernmental mandate for a fiscal year. If appropriations provided are insufficient for the mandate, the Agency is required to notify Congress within 30 days of the beginning of the fiscal year and submit either: (1) a statement, based on a re-estimate of the direct costs of the mandate, that the lower appropriations is sufficient; or, (2) legislative recommendations for implementing a less costly mandate or making the mandate ineffective for the fiscal year. Sixty days after the Agency submission, the mandate ceases to be effective unless Congress provides otherwise by law (see Appendix). Only if the appropriation is less than the direct cost of the mandate, the agency is required to submit a statement or legislative recommendation.
Section 408(c)(1)(B)(iii)(III)(bb) stipulates that the relevant committees in both the House and Senate provide an expedited procedure in the underlying intergovernmental legislation for the consideration of agency statements and legislative recommendations. If the relevant committees of the House and Senate choose not to include expedited procedures in the underlying intergovernmental mandates legislation, then a point of order may be raised against that legislation.
Section 408(c)(3)(A) of the Senate Bill exempts appropriations legislation from the points of order against unfunded mandates but establishes a procedure to extract legislative intergovernmental mandate provisions in appropriations legislation. An appropriations bill, resolution, amendment thereto, or conference report thereon that contains a provision with an intergovernmental mandate that exceeds the thresholds established in the Bill is out of order in the Senate. Upon a point of order being sustained against provisions in appropriations legislation containing mandates, the offending provision is deemed strickened from the measure.
Section 408(c)(2) allows State, local, or tribal governments to continue to voluntarily comply with the original intergovernmental mandate at its own expense.
Section 301(a) of the House Amendment adds a new Section 425(a)(2)(C) to the Budget Act that establishes different procedures for intergovernmental mandates that are contingent on appropriations Acts. More specifically, if mandate legislation funds an intergovernmental mandate through an authorization of appropriations, in order to avoid the point of order, the legislation must either: 1) require the implementing agency to repeal the mandate at the beginning of the fiscal year unless there are sufficient appropriations to cover the full cost of the mandate; or, 2) require the implementing agency to reduce the requirements of the mandate to bring its costs within the amount provided in the appropriations Act.
Second, the House Amendment exempts appropriations bills and amendments thereto from the point of order.
Section 101(a) of the Conference Substitute adds a new section 425(a)(2)(B)(iii) to the Budget Act, which adopts the Senate language with technical changes. In the House of Representatives and the Senate, the requirements of subclause (II) shall be considered as fulfilled by inclusion in the authorization bill of any procedural prescription to expedite consideration of the statement or legislative recommendations, including a requirement that the authorizing committee consider the statement or legislative recommendations on an expedited basis.
If an agency submits a statement with a re-estimate of the direct costs of a mandate or legislative recommendations pursuant to section 425(a)(2)(B)(iii), the conferees expect the agency to submit this statement or legislative recommendations to CBO for its review and comment. The conferees expect the relevant agency to fully and freely share with CBO the information used in developing the re-estimate or the legislative recommendations for a less-cos tly mandate. CBO should make its review and comments available to Congress as appropriate.
The agency is expected to consult with State, local, and tribal governments in preparing its re-estimate or its legislative recommendations for a less costly mandate.
Determinations of Applicability of the Point of Order
Section 101(a) of the Senate Bill adds a new Section 408(c)(4) to the Budget Act that requires the Presiding Officer of the Senate to consult with the Senate Governmental Affair s Committee, to the extent practicable, on the applicability of the point of order in the Senate. Paragraph (5) provides that the levels of mandates for a fiscal year be determined on the basis of estimates by the Senate Budget Committee.
Section 301(a) of the Senate Bill adds a new Section 425(c) to the Budget Act that only provides that mandate levels be based on estimates made by the Budget Committees, in consultation with CBO.
The Conference Substitute contains the Senate language as a new section 425 (d) and (e) of the Budget Act.
Sec. 426. Provisions Relating to the House of Representatives
Section 101(a) of the Senate Bill adds a new Section 408(d) to the Budget Act that makes it out of order in the House to consider a rule or order that waives the point of order established by S. 1. Section 301(a) of the House Amendment adds a new Section 426 to the Budget Act that contains the same provision as the Senate Bill. Section 427 of the House Amendment establishes procedures for the disposition of the point of order in the House.
The Conference Substitute contains the House language on House waivers of rules as a new section 426(a) of the Budget Act. Section 426(b) of the Substitute contains the House language on the House’s disposition of points of order.
Sec. 427. Senator’s requests for CBO cost estimates
The Senate Bill requires CBO to prepare a cost estimate on a bill, joint resolution, amendment, or motion containing an intergovernmental mandate at the written request of any Senator.
The House Amendment contained no such provision.
Section 101(a) of the Conference Substitute adds a new section 427 to the Budget Act that narrows the Senate language so that it only applies to cost estimates for amendments that contain intergovernmental mandates. The conferees note CBO already responds to members requests for cost estimates to the extent practicable. Viewing the concern about the applicability of this point of order to amendments that would cause the intergovernmental mandate thresholds to be exceeded, however, the conferees have retained language requiring CBO, to the extent practicable, to prepare cost estimates for a Senator’s amendment if it were to cause the thresholds to be exceeded.
This more limited language is not intended to preclude CBO from preparing mandate cost estimates for bills. These requirements are already provided for in section 424 of the Substitute regarding reported bills and conference reports. Moreover, the conferees intend that CBO be responsive to Senator’s requests in preparing cost estimates for bills and joint resolutions that may be marked up or for bills and resolutions that may be offered as amendments.
Sec. 428. Clarification on the application
Section 101(a) of the Senate Bill adds a new subsection 408(f) to the Budget Act, which clarifies that application of section 408 to legislation. If a legislative measure would reauthorize or amend existing statutes, the points of order established by the bill would apply only if the measure would either: (1) reduce net authorized financial assistance for complying with mandates by an amount that would cause a breach of the thresholds, without reducing duties by a corresponding amount: or, (2) otherwise increase the net aggregate direct costs of mandates by an amount that would cause a breach of the thresholds. The Senate Bill also provides that the net direct cost of Federal mandates in legislation means the net increase of those costs as compared to current law levels. If mandate legislation is extending an authorization of appropriations, the levels authorized in the mandate legislation are to be compared to the last year in which appropriations are authorized under current law.
Section 301(a) of the House Amendment adds a new Section 425(d) to the Budget Act that provides narrower language for limiting the application of part B.
The Conference Substitute contains the Senate language as a new section 428 of the Budget Act.
U.S. Congress, Unfunded Mandates Reform Act of 1995, Report to Accompany S. 1, House Government Reform Committee, H. Rept. 104-76, 104th Congress 1st sess., March 19, 1995, pp. 27-35; (Washington, D.C.: Government Publishing Office, 1995).
REFERENCES
CRS – Unfunded Mandates Reform Act – History, Impact, and Issues (R40957) October 27, 2016
Legislative History Notes
Public Laws
Unfunded Mandates Reform Act of 1995, Public Law 104–4, 109 Stat. 48, Mar. 22, 1995, S. 1.
Codification
This section was not classified to the U.S. Code since it amended the Congressional Budget Act of 1974, adding additional sections to title IV of that Act. Individual sections added to title IV are classified to title 2 of the U.S. Code at 2 U.S.C. § 658 to 2 U.S.C. 658g. See the links in the “Endnotes” in the Counsel Notes above.
EFFECTIVE DATE
The effective date for this section is Jan. 1, 1996, or on the date 90 days after appropriations made available, as authorized by section 110 (UMRA 1995), whichever earlier, and applicable to legislation considered on and after that date.
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