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Friday, October 26, 2012

Unfunded Mandates Reform Act: History, Impact, and Issues

Robert Jay Dilger
Senior Specialist in American National Government

Richard S. Beth
Specialist on Congress and the Legislative Process

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 conditions of federal assistance; 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.

State and local government officials argue that UMRA has restrained the growth of unfunded federal mandates, but that its coverage should be broadened, with special consideration given to including conditions of federal financial assistance. Reflecting these views, H.R. 373, the Unfunded Mandates Information and Transparency Act of 2011 (as amended), and H.R. 4078, the Red Tape Reduction and Small Business Job Creation Act: Title IV, the Unfunded Mandates Information and Transparency Act of 2012, which was passed by the House on July 26, 2012, would, among other things, broaden UMRA’s coverage to include assessments of indirect costs, such as foregone profits and costs passed onto consumers, as well as direct costs 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. These two bills, as well as H.R. 5818, the Mandate Prevention Act of 2010, would also make private-sector mandates subject to a substantive point of order. H.R. 373, H.R. 4078, S. 1189, the Unfunded Mandates Accountability Act of 2011, its companion bill in the House, H.R. 2964, and S. 1720, the Jobs Through Growth Act: Title VII, the Unfunded Mandates Accountability Act, would also remove UMRA’s exemption for rules issued by most independent agencies. Other organizations have argued that UMRA’s coverage should be maintained or reinforced by adding exclusions for mandates regarding public health, safety, workers’ rights, environmental protection, and the disabled.

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 which 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.

Date of Report: October 22, 2012
Number of Pages: 56
Order Number: R40957
Price: $29.95

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