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United States Government Accountability Office: 
GAO: 

Testimony: 

Before the Subcommittee on Technology, Information Policy, 
Intergovernmental Relations, and Procurement Reform, Committee on 
Oversight and Government Reform, House of Representatives: 

For Release on Delivery: 
Expected at 9:30 a.m. EST: 
Tuesday, February 15, 2011: 

Federal Mandates: 

Few Rules Trigger Unfunded Mandates Reform Act: 

Statement of Denise M. Fantone, Director:
Strategic Issues: 

GAO-11-385T: 

GAO Highlights: 

Highlights of GAO-11-385T, a testimony before the Subcommittee on 
Technology, Information Policy, Intergovernmental Relations, and 
Procurement Reform, Committee on Oversight and Government Reform, 
House of Representatives. 

Why GAO Did This Study: 

Many federal programs and initiatives involve shared responsibilities—
and benefits—for the federal, state, local and tribal governments, and 
the private sector. Federal statutes and rules often require 
nonfederal parties to expend their resources in support of certain 
national goals. The Unfunded Mandates Reform Act of 1995 (UMRA) was 
enacted to address some of the concerns about federal statutes and 
regulations that require nonfederal parties to expend resources to 
achieve these goals without being provided funding to cover the costs. 
UMRA generates information about how these potential federal mandates 
could affect other levels of government and the private sector as 
Congress and agency decision makers consider proposed legislation and 
regulations. 

Congress has asked GAO to evaluate the effectiveness of UMRA 
procedures and requirements several times since it was enacted. Based 
on that body of work, this testimony focuses on Title II of UMRA 
regarding federal mandates in rules and (1) describes the exceptions 
and exclusions in the act when identifying a federal mandate and (2) 
summarizes GAO findings on UMRA’s implementation over the years and 
views of knowledgeable parties on potential improvements. 

GAO is not making recommendations in this testimony. 

What GAO Found: 

UMRA’s process for identifying whether a rule contains a federal 
mandate is complex, and there are 14 reasons why a rule would not be 
identified as containing a federal mandate. These include definitions, 
exceptions, and exclusions. For example, requirements in rules are not 
considered federal mandates under UMRA if they (1) arise in a rule 
issued by an independent regulatory agency, such as the Securities and 
Exchange Commission, (2) are a condition of receiving federal 
financial assistance, (3) require compliance with accounting or 
auditing procedures, or (4) provide for emergency assistance. If UMRA 
applies, the federal agency is then required to prepare a written 
statement about the anticipated effects of the mandates contained in 
the rule and consult with affected parties. 

GAO consistently found that agencies’ rules seldom triggered UMRA. In 
2004 GAO reported that 65 rules, or over half of the 113 final major 
rules published in calendar years 2001 and 2002 that had not triggered 
UMRA, had impacts on nonfederal parties that those affected might 
perceive as unfunded mandates. GAO analyzed each of those rules to 
identify how it was treated under UMRA’s mandate identification 
process. Among the most common reasons the rules did not trigger UMRA’
s requirements were that (1) the rule did not meet the UMRA dollar 
threshold for expenditures, (2) the rule was published in final form 
without going through the proposed rule stage, (3) participation in 
the federal program was considered voluntary, and (4) the rule was 
issued by one of the independent regulatory agencies, which are not 
covered by the act. It is important to note that GAO also found that 
the remaining rules that had not triggered UMRA included no new 
requirements that would impose costs or have a negative financial 
effect on state, local, and tribal governments or the private sector. 
These rules often involved payments from the federal government to 
nonfederal parties. 

In 2005, when GAO asked knowledgeable parties from academia, advocacy 
groups, business, federal agencies, and state and local governments 
about UMRA, they frequently raised concerns about the act’s coverage 
and the quality of analyses of federal mandates. Their comments 
suggested that there is merit in considering whether features of the 
law that determine if a rule includes a federal mandate subject to 
UMRA need to be retained, modified, or eliminated. Additionally, the 
parties we spoke with suggested that evaluation of existing rules 
through retrospective reviews has the potential of being able to 
better assess the effectiveness of UMRA, among other benefits. 

View [hyperlink, http://www.gao.gov/products/GAO-11-385T] or key 
components. For more information, contact Denise M. Fantone at (202) 
512-6806 or fantoned@gao.gov. 

[End of section] 

Mr. Chairman and Members of the Subcommittee: 

I am pleased to have the opportunity to discuss the Unfunded Mandates 
Reform Act of 1995 (UMRA),[Footnote 1] specifically, at your request, 
Title II which applies to federal mandates contained in federal 
agencies' rules. Congress has asked GAO to evaluate the effectiveness 
of UMRA procedures and requirements several times since it was 
enacted.[Footnote 2] In 2004 and 2005, we analyzed the act's 
procedures for identifying federal mandates in depth, and we also were 
asked to seek the views of diverse parties familiar with UMRA and 
report on the most frequently cited targets for improvement.[Footnote 
3] Drawing on that work, my remarks today will (1) describe the 
exceptions and exclusions for identifying whether a rule contains a 
federal mandate that triggers UMRA, and (2) summarize GAO findings on 
UMRA's implementation over the years and the views of knowledgeable 
parties on ways to improve the act. 

My testimony today is based on prior reports and testimonies prepared 
at the request of Congress since UMRA was enacted. We used multiple 
methodologies to develop our findings for these reports. To describe 
the applicable procedures, definitions, and exclusions for identifying 
federal mandates in rules under UMRA, we reviewed the act, other 
related guidance documents, and Office of Management and Budget (OMB) 
reports on the implementation of UMRA. To identify rules that were and 
were not identified as containing federal mandates under UMRA and 
analyze the reasons for those determinations, we reviewed major final 
rules published over various periods of time. We also interviewed a 
diverse group of parties from the academic, business, federal agency, 
public interest advocacy, and state and local governments sectors 
knowledgeable about the implementation of UMRA to obtain their views. 
We conducted our work for these reports in accordance with generally 
accepted government auditing standards. A more detailed discussion of 
scope and methodology is available in each of the reports cited in the 
related products list. 

What we have consistently found is that the complex UMRA process 
provides many reasons for not identifying a rule as having federal 
mandates subject to the act and, as a result, federal agencies' rules 
seldom trigger UMRA's reporting and consultation requirements. 
Comments we obtained from multiple parties representing different 
sectors suggested that there is merit in considering whether features 
of the law that determine if a rule includes a federal mandate subject 
to UMRA need to be retained, modified, or eliminated. Additionally, 
the parties we spoke with suggested that evaluation of existing rules 
through retrospective reviews has the potential of being able to 
better assess the effectiveness of UMRA, among other benefits. 

As we noted in previous reports, many federal programs and initiatives 
involve shared responsibilities--and benefits--for the federal 
government, state, local and tribal governments, and the private 
sector. To aid in the implementation of these programs and initiatives 
and to share their costs, federal statutes and regulations often 
require nonfederal parties to expend their resources in support of 
certain national goals. Nevertheless, Congress and others in the 
public policy arena have struggled to determine the appropriate 
balance of fiscal responsibility between the federal government, 
state, local and tribal governments, and the private sector in 
carrying out these federal mandates and this continues to be a 
challenge and source of debate. 

UMRA was enacted to address some of the concerns about federal 
statutes and regulations that require nonfederal parties to expend 
resources to achieve legislative goals without being provided funding 
to cover the costs. However, the act does not preclude the 
implementation of such mandates. Rather, UMRA generates information 
about how these potential federal mandates could affect other levels 
of government and the private sector as Congress and agency decision 
makers consider proposed legislation and regulations.[Footnote 4] For 
regulatory mandates, UMRA also includes a consultation requirement. 
Agencies must develop a process to permit elected officers and 
representatives of state, local, and tribal governments to provide 
input in the development of regulatory proposals containing 
significant intergovernmental mandates. The act also requires actions 
by OMB, including establishing a pilot program to identify and test 
new ways to reduce reporting and compliance burdens for small 
governments and annual reporting to Congress on agencies' compliance 
with UMRA. 

Why a Rule Would Not Be Identified as Containing a Federal Mandate: 

The UMRA process under Title II focuses first on determining whether a 
rule contains provisions that would be identified as federal mandates 
under UMRA and therefore subject to the act's other requirements. This 
process for the identification and analysis of federal mandates is 
complex. Federal rules must pass through multiple steps and meet 
multiple conditions before UMRA requirements apply. These include 
procedures, definitions, and other categories of exclusions. For 
example, the provisions in a rule are not considered federal mandates 
under UMRA if they (1) arise in a rule issued by an independent 
regulatory agency, such as the Commodity Futures Trading Commission or 
the Securities and Exchange Commission; (2) are a condition of 
receiving federal financial assistance; (3) require compliance with 
accounting or auditing procedures; or (4) provide for emergency 
assistance. In total, there are 14 reasons why an agency would not 
identify its rule as containing a federal mandate subject to UMRA, as 
illustrated in table 1. 

Table 1: Reasons Why a Rule Would Not Be Identified as Containing a 
Federal Mandate under UMRA: 

Definition of mandate and exceptions: 

Exclusions: 1. 
The rule: Contains no enforceable duty (unavoidable requirement) upon 
state, local, or tribal governments or upon the private sector. 

Exclusions: 2. 
The rule: Contains duties that are a condition of federal financial 
assistance. 

Exclusions: 3. 
The rule: Involves participation in a voluntary federal program. 

Exclusions: 4. 
The rule: Is issued by an independent regulatory agency. 

Procedures: 

Exclusions: 5. 
The rule: Does not go through the proposed rule stage[A]. 

Exclusions: 

Exclusions: 6. 
The rule: Enforces constitutional rights of individuals. 

Exclusions: 7. 
The rule: Enforces rights prohibiting discrimination. 

Exclusions: 8. 
The rule: Requires compliance with accounting and auditing procedures. 

Exclusions: 9. 
The rule: Provides for emergency assistance. 

Exclusions: 10. 
The rule: Is necessary for national security or foreign affairs. 

Exclusions: 11. 
The rule: Is designated as emergency legislation. 

Exclusions: 12. 
The rule: Relates to certain programs under the Social Security Act. 

Threshold: 

Exclusions: 13. 
The rule: Requires no expenditure of $100 million or more (adjusted 
for inflation) in any 1 year[B]. 

Other: 

Exclusions: 14. 
The rule: Is subject to a statute that prohibits consideration of 
costs and benefits. 

Source: GAO summary of UMRA provisions. For the full text of these 
provisions, see UMRA, e.g., 2 U.S.C. §§ 658, 1503. 

[A] Agencies can publish final regulatory actions without notices of 
proposed rulemaking using either good cause, categorical, or statute- 
specific exceptions to the Administrative Procedure Act's notice and 
comment requirements. See 5.U.S.C. §§ 553(b)(B), 553(d)(3). 

[B] The UMRA threshold in Title II is triggered only by direct 
expenditures, not costs or effects on the economy, as in other 
rulemaking requirements such as Executive Order 12866. The dollar 
thresholds in UMRA are in 1996 dollars and are adjusted annually for 
inflation. For 2011, the threshold is $142 million. The same threshold 
applies to determining whether a rule includes an intergovernmental 
mandate or a private sector mandate. 

[End of table] 

If a rule passes through all of these exceptions and exclusions, UMRA 
requirements apply. Federal agencies are then required to prepare a 
written statement about the federal mandates contained in the rule and 
consult with affected parties. The written statement is to contain: 

1. identification of the provision of federal law under which the rule 
is being promulgated; 

2. a qualitative and quantitative assessment of the anticipated costs 
and benefits of the federal mandate (including those on state, local 
and tribal governments or the private sector) and the effect of the 
mandate on health, safety, and the natural environment; 

3. estimates by the agency (if reasonably feasible) of future 
compliance costs of the federal mandate and any disproportionate 
budgetary effects upon particular regions, governments, types of 
communities or particular segments of the private sector; 

4. estimates of the effect on the national economy; and: 

5. a description of the extent of the agency's prior consultation with 
elected representatives of affected state, local, and tribal 
governments, including a summary of their comments and concerns and 
the agency's evaluation of those comments and concerns. 

For such rules, agencies are also to identify and 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 rules (or explain why that alternative 
was not selected). 

UMRA recognizes that statements prepared in response to other 
rulemaking statutes and orders may be used to satisfy some or all of 
UMRA's requirements. For example, agencies could also be required to 
prepare estimates of a rule's effects or conduct additional 
consultation and outreach to potentially affected parties in response 
to requirements such as Executive Order 12866 (on regulatory planning 
and review), the Regulatory Flexibility Act (regarding effects of 
rules on small entities) and Executive Order 13132 (on federalism). 

Few Rules Trigger UMRA: 

UMRA's many definitions, exclusions, and exceptions result in many 
rules that never trigger the act's thresholds and thus not identified 
as federal mandates. Given all the conditions needed to trigger the 
act, it is not surprising that our reviews over the years reported 
that relatively few final rules contained federal mandates subject to 
UMRA. Although the scope of our reports was limited to rules issued 
during specific time periods, our findings on the effect and 
applicability of UMRA have been consistent over time. 

Our findings are also generally consistent with OMB's annual reports 
to Congress on agencies' compliance with UMRA. As illustrated in table 
2 below, agencies identified about 13 percent of the 452 major final 
rules issued in fiscal years 2000 through 2009 as containing federal 
mandates under UMRA.[Footnote 5] Of those that triggered UMRA, the 
majority of those mandates were on the private sector. OMB's reports 
identified only 5 final major rules containing intergovernmental 
mandates that triggered UMRA's requirements during that 10-year period. 

Table 2: Number of Final Major Rules That Triggered UMRA, by Fiscal 
Year: 

Fiscal Year: 2000; 
Final major rules[A]: 31; 
Final major rules that triggered UMRA: Number: 12; 
Final major rules that triggered UMRA: Percentage: 39%. 

Fiscal Year: 2001; 
Final major rules[A]: 87; 
Final major rules that triggered UMRA: Number: 0; 
Final major rules that triggered UMRA: Percentage: 0. 

Fiscal Year: 2002; 
Final major rules[A]: 31; 
Final major rules that triggered UMRA: Number: 1; 
Final major rules that triggered UMRA: Percentage: 3%. 

Fiscal Year: 2003; 
Final major rules[A]: 37; 
Final major rules that triggered UMRA: Number: 7; 
Final major rules that triggered UMRA: Percentage: 19%. 

Fiscal Year: 2004; 
Final major rules[A]: 45; 
Final major rules that triggered UMRA: Number: 4; 
Final major rules that triggered UMRA: Percentage: 9%. 

Fiscal Year: 2005; 
Final major rules[A]: 45; 
Final major rules that triggered UMRA: Number: 2; 
Final major rules that triggered UMRA: Percentage: 4%. 

Fiscal Year: 2006; 
Final major rules[A]: 28; 
Final major rules that triggered UMRA: Number: 2; 
Final major rules that triggered UMRA: Percentage: 7%. 

Fiscal Year: 2007; 
Final major rules[A]: 40; 
Final major rules that triggered UMRA: Number: 11; 
Final major rules that triggered UMRA: Percentage: 28%. 

Fiscal Year: 2008; 
Final major rules[A]: 42; 
Final major rules that triggered UMRA: Number: 8; 
Final major rules that triggered UMRA: Percentage: 19%. 

Fiscal Year: 2009; 
Final major rules[A]: 66; 
Final major rules that triggered UMRA: Number: 12; 
Final major rules that triggered UMRA: Percentage: 18%. 

Fiscal Year: Totals; 
Final major rules[A]: 452; 
Final major rules that triggered UMRA: Number: 59; 
Final major rules that triggered UMRA: Percentage: 13%. 

Source: OMB annual reports to Congress on agency compliance with the 
Unfunded Mandates Reform Act: 

[A] OMB's reported numbers only include major rules reviewed by OMB 
under Executive Order 12866; they do not include major rules published 
by independent regulatory agencies. 

[End of table] 

In 2004, we reported that 65 rules, or over half of the 113 final 
major rules published in calendar years 2001 and 2002 that had not 
triggered UMRA, had impacts that those affected by the rules might 
perceive as unfunded mandates.[Footnote 6] We analyzed each of those 
rules to identify how they were treated under UMRA's mandate 
identification process. Among the most common reasons the rules did 
not trigger UMRA were: 

* the estimated direct expenditures, as defined by UMRA, would not 
meet the applicable thresholds; 

* the rules did not go through the proposed rule stage; 

* participation in the federal program was considered voluntary; and: 

* the rules were issued by independent regulatory agencies not covered 
by the act. 

Often agencies cited more than one reason, or more than one reason 
could have applied to a given rule.[Footnote 7] Some of the rules that 
had not triggered UMRA appeared to have potentially similar financial 
impacts on affected nonfederal parties. For example, a rule could 
reduce industry gross revenues by over $100 million in a single year, 
and therefore be economically significant, yet not trigger UMRA 
because it does not require expenditures above UMRA's threshold in any 
year. 

It is important to note that the remaining rules that had not 
triggered UMRA included no new requirements that would impose costs or 
have a negative financial effect on state, local, and tribal 
governments or the private sector. As part of these rules the federal 
government often provided nonfederal parties with substantial 
payments, such as loans or Medicare payments. 

In 2005, when we obtained the views of a diverse group of parties from 
academia, advocacy groups, business, federal agencies, and state and 
local governments about UMRA's strengths and weaknesses, they 
frequently raised concerns about coverage and the quality of analyses 
of mandates. UMRA's narrow coverage stood out as the primary issue for 
most sectors, and one worth revisiting, because it excludes so many 
actions from coverage and contributes to complaints about unfunded or 
underfunded mandates. However, a few parties, primarily from the 
public interest advocacy sector, viewed UMRA's narrow coverage as a 
strength that should be maintained. In general, the comments we heard 
raised the question of whether UMRA--given its current procedures, 
definitions, and exclusions--adequately captures and scrutinizes 
federal actions that might impose significant financial or other 
burdens on affected nonfederal parties. The parties suggested that 
there is merit in considering whether features of UMRA that determine 
if a rule includes a federal mandate need to be retained, modified, or 
eliminated. 

As for the underlying purpose of UMRA--generating information about 
the nature and size of federal mandates--the parties we consulted 
generally agreed there needed to be better evaluation and research on 
federal mandates and more complete estimates of the cost of mandates 
on nonfederal entities, both direct and indirect. The parties most 
frequently suggested that agencies evaluate the effectiveness of 
mandates after they had been implemented. Representatives of 
practically every sector indicated that more needed to be done to 
understand the costs and benefits of federal mandates. In their 
comments, they suggested that evaluation of existing rules through 
retrospective reviews has the potential of being able to better assess 
the effectiveness of UMRA, among other benefits. The two broad 
categories for potential improvements of the act raised by the 
parties--addressing coverage and definitional issues as well as more 
attention to retrospective reviews of existing regulations--have also 
been highlighted by our broader body of work on other regulatory 
requirements.[Footnote 8] 

Observations: 

Our work on federal, state, and local governments' fiscal stresses 
raises broader questions about the allocation of fiscal 
responsibilities within our federal system.[Footnote 9] The federal 
government partners with state and local governments to achieve 
national priorities through implementation of a variety of programs. 
The interconnectedness of intergovernmental programs requires that all 
levels of government remain aware of, and ready to respond to, fiscal 
pressures. The combined long-term fiscal challenges further complicate 
the process of sorting out competing demands for federal funds and 
other fiscal resources. Actions will be needed by all in coming years, 
and the challenges cannot simply be shifted from one level of 
government to another. 

Mr. Chairman, this concludes my prepared statement. I would be pleased 
to address any questions you or other members of the subcommittee 
might have. 

Contacts and Acknowledgments: 

For further information, please contact Denise M. Fantone at (202) 512-
6806 or fantoned@gao.gov. Contact points for our Offices of 
Congressional Relations and Public Affairs may be found on the last 
page of this statement. Individuals who made key contributions to this 
testimony include Barbara Lancaster; Andrea Levine; Joseph Santiago; 
and Jared Sippel. 

[End of section] 

Appendix I: 

April 14, 2005: 

Unfunded Mandates: 

Analysis of Reform Act's Coverage and Views on Possible Next Steps: 

GAO Highlights: 

Highlights of GAO-05-533T, a testimony before the Subcommittee on 
Oversight of Government Management, the Federal Workforce and the 
District of Columbia; Committee on Homeland Security and Governmental 
Affairs, U.S. Senate: 

Why GAO Did This Study: 

The Unfunded Mandates Reform Act of 1995 (UMRA) was enacted to address 
concerns about federal statutes and regulations that require nonfederal 
parties to expend resources to achieve legislative goals without being 
provided funding to cover the costs. UMRA generates information about 
the nature and size of potential federal mandates but does not preclude 
the implementation of such mandates. At various times in UMRA’s 10-year 
history, Congress has considered legislation to amend aspects of the 
act to address ongoing questions about its effectiveness. 

This testimony is based on GAO’s reports, Unfunded Mandates: Analysis 
of Reform Act Coverage (GAO-04-637, May 12, 2004) and Unfunded 
Mandates: Views Vary About Reform Act’s Strengths, Weaknesses, and 
Options for Improvement (GAO-05-454, March 31, 2005). Specifically, 
this testimony addresses (1) UMRA’s procedures for the identification 
of federal mandates and GAO’s analysis of the implementation of those 
procedures for statutes enacted and major rules issued in 2001 and 
2002, and (2) the views of a diverse group of parties familiar with 
UMRA on the significant strengths and weaknesses of the act as the 
framework for addressing mandate issues and potential options for 
reinforcing the strengths or addressing the weaknesses. 

What GAO Found: 

The identification and analysis of intergovernmental and private sector 
mandates is a complex process under UMRA. Proposed legislation and 
regulations are subject to various definitions, exceptions, and 
exclusions before being identified as containing mandates at or above 
UMRA’s cost thresholds. Also, some legislation and rules may be enacted 
or issued via procedures that do not trigger UMRA reviews. In 2001 and 
2002, 5 of 377 statutes enacted and 9 of 122 major or economically 
significant final rules issued were identified as containing federal 
mandates at or above UMRA’s thresholds. Despite the determinations 
under UMRA, at least 43 other statutes and 65 rules resulted in new 
costs or negative financial consequences that affected nonfederal 
parties might perceive as unfunded or underfunded federal mandates. 

GAO obtained information from 52 knowledgeable parties, who provided a 
significant number of comments about UMRA, specifically, and federal 
mandates, generally. Their views often varied across and within the 
five sectors we identified (academic/think tank, public interest 
advocacy groups, business, federal agencies, and state and local 
governments). Overall, the numerous strengths, weaknesses, and options 
for improvement identified during the review fell into several broad 
themes, including, among others, UMRA-specific issues such as the act’s 
coverage and enforcement, and more general issues about the design, 
funding, and evaluation of federal mandates. UMRA’s coverage was, by 
far, the most frequently cited issue by parties from the various 
sectors. Parties across most sectors said that UMRA’s numerous 
definitions, exclusions, and exceptions leave out many federal actions 
that might significantly impact nonfederal entities and suggested that 
they should be revisited. However, a few parties, primarily from the 
public interest advocacy sector, viewed UMRA’s narrow coverage as a 
strength that should be maintained. Another issue on which the parties 
had particularly strong views was the perceived need for better 
evaluation and research of federal mandates and more complete estimates 
of both the direct and indirect costs of mandates on nonfederal 
entities. The most frequently suggested option to address these 
evaluation issues was more post-implementation evaluation of existing 
mandates or “look backs” at their effectiveness. 

Going forward, the issue of unfunded mandates raises broader questions 
about assigning fiscal responsibilities within our federal system. The 
long-term fiscal challenges facing the federal and state and local 
governments and the continued relevance of existing programs and 
priorities warrant a national debate to review what the government 
does, how it does business, and how it finances its priorities. Such a 
reexamination includes considering how responsibilities for financing 
public services are allocated and shared across the many nonfederal 
entities in the U.S. system. 

[hyperlink, http://www.gao.gov/products/GAO-05-533T]. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Orice M. Williams, (202) 
512-5837, williamso@gao.gov. 

[End of highlights] 

March 2005: 

Unfunded Mandates: 

Views Vary About Reform Act's Strengths, Weaknesses, and Options for 
Improvement: 

GAO Highlights: 

Highlights of GAO-05-454, a report to the Chairman, Subcommittee on 
Oversight of Government Management, the Federal Workforce and the 
District of Columbia, Committee on Homeland Security and Governmental 
Affairs, U.S. Senate: 

Why GAO Did This Study: 

The Unfunded Mandates Reform Act of 1995 (UMRA) was enacted to address 
concerns about federal statutes and regulations that require 
nonfederal parties to expend resources to achieve legislative goals 
without being provided federal funding to cover the costs. UMRA 
generates information about the nature and size of potential federal 
mandates on nonfederal entities to assist Congress and agency decision 
makers in their consideration of proposed legislation and regulations. 
However, it does not preclude the implementation of such mandates. 

At various times in its 10-year history, Congress has considered 
legislation to amend various aspects of the act to address ongoing 
questions about its effectiveness. Most recently, GAO was asked to 
consult with a diverse group of parties familiar with the act and to 
report their views on (1) the significant strengths and weaknesses of 
UMRA as the framework for addressing mandate issues and (2) potential 
options for reinforcing the strengths or addressing the weaknesses. To 
address these objectives, we obtained information from 52 
organizations and individuals reflecting a diverse range of 
viewpoints. GAO analyzed the information acquired and organized it 
into broad themes for analytical and reporting purposes. 

GAO makes no recommendations in this report. 

What GAO Found: 

The parties GAO contacted provided a significant number of comments 
about UMRA, specifically, and federal mandates, generally. Their views 
often varied across and within the five sectors we identified 
(academic/think tank, public interest advocacy, business, federal 
agencies, and state and local governments). Overall, the numerous 
strengths, weaknesses and options for improvement identified during 
the review fell into several broad themes, including UMRA specific 
issues such as coverage and enforcement, among others, and more 
general issues about the design, funding, and evaluation of federal 
mandates. First, UMRA coverage was, by far, the most frequently cited 
issue by parties from the various sectors. Parties across most sectors 
that provided comments said UMRA’s numerous definitions, exclusions, 
and exceptions leave out many federal actions that may significantly 
impact nonfederal entities and should be revisited. Among the most 
commonly suggested options were to expand UMRA’s coverage to include a 
broader set of actions by limiting the various exclusions and 
exceptions and lowering the cost thresholds, which would make more 
federal actions mandates under UMRA. However, a few parties, primarily 
from the public interest advocacy sector, viewed UMRA’s narrow 
coverage as a strength that should be maintained. 

Second, parties from various sectors also raised a number of issues 
about federal mandates in general. In particular, they had strong 
views about the need for better evaluation and research of federal 
mandates and more complete estimates of both the direct and indirect 
costs of mandates on nonfederal entities. The most frequently 
suggested option to address these issues was more post-implementation 
evaluation of existing mandates or “look backs.” Such evaluations of 
the actual performance of mandates could enable policymakers to better 
understand mandates’ benefits, impacts and costs among other issues. 
In turn, developing such evaluation information could lead to the 
adjustment of existing mandate programs in terms of design and/or 
funding, perhaps resulting in more effective or efficient programs. 

Going forward, the issue of unfunded mandates raises broader questions 
about assigning fiscal responsibilities within our federal system. 
Federal and state governments face serious fiscal challenges both in 
the short and longer term. As GAO reported in its February 2005 report 
entitled 21st Century Challenges: Reexamining the Base of the Federal 
Government (GAO-05-325SP), the long-term fiscal challenges facing the 
federal budget and numerous other geopolitical changes challenging the 
continued relevance of existing programs and priorities warrant a 
national debate to review what the government does, how it does 
business and how it finances its priorities. Such a reexamination 
includes considering how responsibilities for financing public 
services are allocated and shared across the many nonfederal entities 
in the U.S. system as well. 

What GAO Recommends: 

[hyperlink, http://www.gao.gov/products/GAO-05-454] 

To view the full product, including the scope and methodology, click 
on the link above. For more information, contact Orice M. Williams at 
(202) 512-5837, or williamso@gao.gov. 

[End of highlights] 

March 8, 2005: 

Federal Mandates: 

Identification Process Is Complex and Federal Agency Roles Vary: 

GAO Highlights: 

Highlights of GAO-05-401T, a statement for the record to the Committee 
on Government Reform, House of Representatives: 

Why GAO Did This Study: 

The Unfunded Mandate Reform Act of 1995 (UMRA) was enacted to address 
concerns expressed by state and local governments about federal 
statutes and regulations that require nonfederal parties to expend 
resources to achieve legislative goals without being provided funding 
to cover the costs. 

Over the past 10 years, Congress has at various times considered 
legislation that would amend various aspects of UMRA. 

This testimony is based on GAO's report, Unfunded Mandates: Analysis of 
Reform Act Coverage (GAO-04-637, May 12, 2004). Specifically, this 
testimony addresses (1) the process used to identify federal mandates 
and what are federal agencies' roles, (2) statutes and rules that 
contained federal mandates under UMRA, and (3) statutes and rules that 
were not considered mandates under UMRA but may be perceived to be 
"unfunded mandates" by certain affected parties. 

What GAO Found: 

GAO found that the identification and analysis of intergovernmental and 
private sector mandates is a complex process under UMRA. Proposed 
legislation and regulations are subject to various definitions, 
exclusions and exceptions before being identified as containing 
mandates at or above UMRA's cost thresholds. The Congressional Budget 
Office (CBO) is required to prepare statements identifying and 
estimating, if feasible, the costs of mandates in legislation. While a 
point of order can be raised on the floor of the House or Senate 
against consideration of any UMRA-covered intergovernmental mandate 
that lacks a CBO estimate or exceeds the cost thresholds, it contains 
no similar enforcement for private sector mandates. Conversely, federal 
agencies are required to prepare mandate statements for regulations 
containing intergovernmental or private sector mandates that would 
result in expenditures at or above the UMRA threshold. The Office of 
Information and Regulatory Affairs, within the Office of Management and 
Budget, is responsible reviewing compliance with UMRA as part of the 
rule making process. 

In 2001 and 2002, 5 of 377 statutes enacted and 9 of 122 major or 
economically significant rules issued were identified as containing 
federal mandates at or above UMRA's thresholds. All 5 statutes and 9 
rules contained private sector mandates as defined by UMRA. One final 
rule also contained an intergovernmental mandate. 

Despite the determinations under UMRA, at least 43 statutes and 65 
rules issued in 2001 and 2002 resulted in new costs or negative 
financial consequences on nonfederal parties. These parties may 
perceive such statutes and rules as unfunded or underfunded mandates 
even though they did not meet UMRA's definition of a federal mandate at 
or above UMRA's thresholds. For 24 of the statutes and 26 of the rules, 
CBO or the agencies estimated that the direct costs or expenditures, as 
defined by UMRA, would not meet or exceed the applicable thresholds. 
The others were excluded for a variety of reasons stemming from 
exclusions or exceptions specified by UMRA. 

[hyperlink, http://www.gao.gov/products/GAO-05-401T]. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Orice M. Williams, 202 
512-5837; williamso@gao.gov. 

[End of highlights] 

May 2004: 

Unfunded Mandates: 

Analysis of Reform Act Coverage: 

GAO Highlights: 

Highlights of GAO-04-637, a report to the Chairman, Senate Subcommittee 
on Oversight of Government Management, the Federal Workforce, and the 
District of Columbia 

Why GAO Did This Study: 

The Unfunded Mandates Reform Act of 1995 (UMRA) was enacted to address 
concerns about federal statutes and rules that require state, local, 
and tribal governments or the private sector to expend resources to 
achieve legislative goals. UMRA generates information about the nature 
and size of potential federal mandates to assist Congress and agency 
decision makers in their consideration of proposed legislation and 
rules. However, concerns about actual or perceived federal mandates 
continue. To provide information and analysis regarding UMRA’s 
implementation, GAO was asked to (1) describe the applicable 
procedures, definitions, and exclusions under UMRA for identifying 
federal mandates in statutes and rules, (2) identify statutes and final 
rules that contained federal mandates under UMRA, and (3) provide 
examples of statutes and final rules that were not identified as 
federal mandates, but that affected parties might perceive as “unfunded 
mandates,” and the reasons these statutes and rules were not federal 
mandates under UMRA. GAO focused on statutes enacted and final rules 
issued in 2001 and 2002 to address the second and third objectives. 

What GAO Found: 

UMRA generally requires congressional committees and the Congressional 
Budget Office (CBO) to identify and estimate the costs of federal 
mandates contained in proposed legislation and federal agencies to do 
so for federal mandates contained in their rules. Identification of 
mandates is a complex process with multiple definitions, exclusions, 
and cost thresholds. Also, some legislation and rules may be enacted or 
issued via procedures that do not trigger UMRA reviews. 

In 2001 and 2002, 5 of 377 statutes enacted and 9 of 122 major or 
economically significant final rules issued were identified as 
containing federal mandates at or above UMRA’s thresholds. Of the other 
federal actions in those 2 years, at least 43 statutes and 65 rules 
contained new requirements on nonfederal parties that might be 
perceived as “unfunded mandates.” For 24 of those statutes and 26 of 
those rules, CBO or federal agencies had determined that the estimated 
direct costs or expenditures would not meet or exceed applicable 
thresholds. For the remaining examples of statues, most often UMRA did 
not require a CBO review prior to their enactment. The remaining rules 
most often did not trigger UMRA because they were issued by independent 
regulatory agencies. Despite the determinations made under UMRA, some 
statutes and rules not triggering UMRA’s thresholds appeared to have 
potential financial impacts on affected nonfederal parties similar to 
those of the actions that were identified as containing mandates at or 
above the act’s thresholds. 

Figure: Proposed Legislation Must Pass Multiple Steps to Be Identified 
as Containing Federal Mandates at or Above UMRA’s Cost Thresholds: 

[Refer to PDF for image: illustration] 

Provision is contained in authorizing legislation reported by an 
authorizing committee and not added after initial CBO UMRA review. 

Automatic CBO Review: 

Provision is not one of seven UMRA exclusions. 

Provision is an enforceable duty on state, local, or tribal 
governments or the private sector, and it is not an UMRA exception. 

Direct cost estimate is feasible. 

Direct cost estimate for all provisions in legislation meets or 
exceeds threshold. 

Source: GAO. 

[End of figure] 

[hyperlink, http://www.gao.gov/products/GAO-04-637]. 

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Patricia A. Dalton at 
(202) 512-6806 or daltonp@gao.gov. 

[End of highlights] 

[End of section] 

Related GAO Products: 

Federal Rulemaking: Improvements Needed to Monitoring and Evaluation 
of Rules Development as Well as to the Transparency of OMB Regulatory 
Reviews. [hyperlink, http://www.gao.gov/products/GAO-09-205]. 
Washington, D.C.: April 20, 2009. 

Federal Rulemaking: Past Reviews and Emerging Trends Suggest Issues 
That Merit Congressional Attention. [hyperlink, 
http://www.gao.gov/products/GAO-06-228T]. Washington, D.C.: November 
1, 2005. 

Regulatory Reform: Prior Reviews of Federal Regulatory Process 
Initiatives Reveal Opportunities for Improvements. [hyperlink, 
http://www.gao.gov/products/GAO-05-939T]. Washington, D.C.: July 27, 
2005. 

Unfunded Mandates: Analysis of Reform Act's Coverage and Views on 
Possible Next Steps. [hyperlink, 
http://www.gao.gov/products/GAO-05-533T]. Washington, D.C.: April 14, 
2005. 

Unfunded Mandates: Views Vary About Reform Act's Strengths, 
Weaknesses, and Options for Improvement. [hyperlink, 
http://www.gao.gov/products/GAO-05-454]. Washington, D.C.: March 31, 
2005. 

Unfunded Mandates: Views Vary About Reform Act's Strengths, 
Weaknesses, and Options for Improvement (Appendix IV, E-Supplement). 
[hyperlink, http://www.gao.gov/products/GAO-05-497SP]. Washington, 
D.C.: March 31, 2005. 

Federal Mandates: Identification Process Is Complex and Federal Agency 
Roles Vary. [hyperlink, http://www.gao.gov/products/GAO-05-401T]. 
Washington, D.C.: March 8, 2005. 

Unfunded Mandates: Analysis of Reform Act Coverage. [hyperlink, 
http://www.gao.gov/products/GAO-04-637]. Washington, D.C.: May 12, 
2004. 

Unfunded Mandates: Reform Act Has Had Little Effect on Agencies' 
Rulemaking Actions. [hyperlink, 
http://www.gao.gov/products/GAO/GGD-98-30]. Washington, D.C.: February 
4, 1998. 

[End of section] 

Footnotes: 

[1] Pub. L. No. 104-4, 109 Stat. 48 (1995) (codified in scattered 
sections of Title 2 of the United States Code). 

[2] App. I contains the highlights pages from some of GAO's reports 
and testimonies, and a list of the related GAO products is included at 
the end of this statement. 

[3] GAO, Unfunded Mandates: Analysis of Reform Act Coverage, 
[hyperlink, http://www.gao.gov/products/GAO-04-637] (Washington, D.C.: 
May 12, 2004) and Unfunded Mandates: Views Vary About Reform Act's 
Strengths, Weaknesses, and Options for Improvement, [hyperlink, 
http://www.gao.gov/products/GAO-05-454] (Washington, D.C.: Mar. 31, 
2005). 

[4] The provisions governing potential mandates in legislation appear 
under Title I of UMRA and those regarding mandates in rules under 
Title II. UMRA also includes two other titles. Title III of UMRA 
required the Advisory Commission on Intergovernmental Relations to 
conduct a study reviewing federal mandates. Title IV establishes 
limited judicial review under the act. 

[5] OMB has not yet released a report covering rules issued in fiscal 
year 2010. 

[6] See [hyperlink, http://www.gao.gov/products/GAO-04-637]. 

[7] Agencies did not always provide a reason, for example when the 
rule was published by an independent agency not covered by UMRA. Even 
for covered agencies, there is no UMRA requirement to identify the 
reason rules do not contain federal mandates. 

[8] See, for example, GAO, Reexamining Regulations: Opportunities 
Exist to Improve Effectiveness and Transparency of Retrospective 
Reviews, [hyperlink, http://www.gao.gov/products/GAO-07-791] 
(Washington, D.C.: July 16, 2007), and Regulatory Reform: Prior 
Reviews of Federal Regulatory Process Initiatives Reveal Opportunities 
for Improvements, [hyperlink, http://www.gao.gov/products/GAO-05-939T] 
(Washington, D.C.: July 27, 2005). 

[9] GAO's state and local fiscal model simulations show that state and 
local governments' long-term fiscal position will steadily decline 
through 2060 absent policy changes. See GAO, State and Local 
Governments: Fiscal Pressures Could Have Implications for Future 
Delivery of Intergovernmental Programs, [hyperlink, 
http://www.gao.gov/products/GAO-10-899] (Washington, D.C.: July 30, 
2010). 

[End of section] 

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