[House Report 106-5]
[From the U.S. Government Publishing Office]
106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-5
=======================================================================
MANDATES INFORMATION ACT OF 1999
_______
February 2, 1999.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Dreier, from the Committee on Rules, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 350]
[Including cost estimate of the Congressional Budget Office]
The Committee on Rules, to whom was referred the bill (H.R.
350) to improve congressional deliberation on proposed Federal
private sector mandates, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mandates Information Act of 1999''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) Before acting on proposed private sector mandates, the
Congress should carefully consider the effects on consumers,
workers, and small businesses.
(2) The Congress has often acted without adequate information
concerning the costs of private sector mandates, instead
focusing only on the benefits.
(3) The implementation of the Unfunded Mandates Reform Act of
1995 has resulted in increased awareness of intergovernmental
mandates without impacting existing environmental, public
health, or safety laws or regulations.
(4) The implementation of this Act will enhance the awareness
of prospective mandates on the private sector without adversely
affecting existing environmental, public health, or safety laws
or regulations.
(5) The costs of private sector mandates are often borne in
part by consumers, in the form of higher prices and reduced
availability of goods and services.
(6) The costs of private sector mandates are often borne in
part by workers, in the form of lower wages, reduced benefits,
and fewer job opportunities.
(7) The costs of private sector mandates are often borne in
part by small businesses, in the form of hiring disincentives
and stunted growth.
SEC. 3. PURPOSES.
The purposes of this Act are the following:
(1) To improve the quality of the Congress' deliberation with
respect to proposed mandates on the private sector, by--
(A) providing the Congress with more complete
information about the effects of such mandates; and
(B) ensuring that the Congress acts on such mandates
only after focused deliberation on the effects.
(2) To enhance the ability of the Congress to distinguish
between private sector mandates that harm consumers, workers,
and small businesses, and mandates that help those groups.
SEC. 4. FEDERAL PRIVATE SECTOR MANDATES.
(a) In General.--
(1) Estimates.--Section 424(b)(2) of the Congressional Budget
Act of 1974 (2 U.S.C. 658c(b)(2)) is amended--
(A) in subparagraph (A) by striking ``and'' after the
semicolon; and
(B) by redesignating subparagraph (B) as subparagraph
(C), and inserting after subparagraph (A) the
following:
``(B) when applicable, the impact (including any
disproportionate impact in particular regions or
industries) on consumers, workers, and small
businesses, of the Federal private sector mandates in
the bill or joint resolution, including--
``(i) an analysis of the effect of the
Federal private sector mandates in the bill or
joint resolution on consumer prices and on the
actual supply of goods and services in consumer
markets;
``(ii) an analysis of the effect of the
Federal private sector mandates in the bill or
joint resolution on worker wages, worker
benefits, and employment opportunities; and
``(iii) an analysis of the effect of the
Federal private sector mandates in the bill or
joint resolution on the hiring practices,
expansion, and profitability of businesses with
100 or fewer employees; and''.
(2) Point of order.--Section 424(b)(3) of the Congressional
Budget Act of 1974 (2 U.S.C. 658c(b)(3)) is amended by adding
after the period the following: ``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.''.
(3) Threshold amounts.--Section 425(a) of the Congressional
Budget Act of 1974 (2 U.S.C. 658d(a)) is amended by--
(A) striking ``and'' after the semicolon at the end
of paragraph (1) and redesignating paragraph (2) as
paragraph (3); and
(B) inserting after paragraph (1) the following new
paragraph:
``(2) any bill, joint resolution, amendment, motion, or
conference report that would increase the direct costs of
Federal private sector mandates (excluding any direct costs
that are attributable to revenue resulting from tax or tariff
provisions of any such measure if it does not raise net tax and
tariff revenues over the 5-fiscal-year period beginning with
the first fiscal year such measure affects such revenues) by an
amount that causes the thresholds specified in section
424(b)(1) to be exceeded; and''.
(4) Application relating to appropriations committees.--(A)
Section 425(c)(1)(A) of the Congressional Budget Act of 1974 (2
U.S.C. 658d(c)(1)(A)) is amended by striking ``except''.
(B) Section 425(c)(1)(B) of the Congressional Budget Act of
1974 (2 U.S.C. 658d(c)(1)(B)) is amended--
(i) in clause (i) by striking ``intergovernmental'';
(ii) in clause (ii) by striking
``intergovernmental'';
(iii) in clause (iii) by striking
``intergovernmental''; and
(iv) in clause (iv) by striking
``intergovernmental''.
(5) Threshold burden.--(A) Section 426(b)(2) of the
Congressional Budget Act of 1974 (2 U.S.C. 658e(b)(2)) is
amended by inserting ``legislative'' before ``language''.
(B) Section 426(b)(2) of the Congressional Budget Act of 1974
(2 U.S.C. 658e(b)(2)) is amended by striking ``section 425 or
subsection (a) of this section'' and inserting ``part B''.
(6) Question of consideration.--(A) Section 426(b)(3) of the
Congressional Budget Act of 1974 (2 U.S.C. 658e(b)(3)) is
amended by striking ``section 425 or subsection (a) of this
section'' and inserting ``part B''.
(B) Section 426(b)(3) of the Congressional Budget Act of 1974
(2 U.S.C. 658e(b)(3)) is amended by inserting ``, except that
not more than one point of order shall be recognized by the
Chair under section 425(a)(1) or (a)(2)'' before the period.
(7) Application relating to congressional budget office.--
Section 427 of the Congressional Budget Act of 1974 (2 U.S.C.
658f) is amended by striking ``intergovernmental''.
(b) Rules of the House of Representatives.--Clause 11(b) of rule
XVIII of the Rules of the House of Representatives is amended by
striking ``intergovernmental'' and by striking ``section 424(a)(1)''
and inserting ``section 424 (a)(1) or (b)(1)''.
(c) Exercise of Rulemaking Powers.--This section is enacted by
Congress--
(1) as an exercise of the rulemaking power of the Senate and
the House of Representatives, respectively, and as such it
shall be considered as part of the rules of such House,
respectively, and shall supersede other rules only to the
extent that they are inconsistent therewith; and
(2) with full recognition of the constitutional right of
either House to change such rules (so far as relating to such
House) at any time, in the same manner, and to the same extent
as in the case of any other rule of each House.
SEC. 5. FEDERAL INTERGOVERNMENTAL MANDATE.
Section 421(5)(B) of the Congressional Budget Act of 1974 (2 U.S.C.
658(5)(B)) is amended--
(1) by striking ``the provision'' after ``if'';
(2) in clause (i)(I) by inserting ``the provision'' before
``would'';
(3) in clause (i)(II) by inserting ``the provision'' before
``would''; and
(4) in clause (ii)--
(A) by inserting ``that legislation, statute, or
regulation does not provide'' before ``the State''; and
(B) by striking ``lack'' and inserting ``new or
expanded''.
Purpose of the Legislation
The purpose of H.R. 350, the Mandates Information Act of
1999, is to: (1) improve the quality of the Congress'
deliberation with respect to proposed mandates on the private
sector by providing the Congress with more complete information
about the effects of such mandates, and ensuring that the
Congress acts on such mandates only after focused deliberation
on the effects; and (2) enhance the ability of the Congress to
distinguish between private sector mandates that harm
consumers, workers, and small businesses, and mandates that
help those groups.
Summary of the Legislation
H.R. 350 amends the Congressional Budget Act of 1974 to
require a congressional committee report on any bill or joint
resolution that includes a federal private sector mandate to
include a statement from CBO estimating the impact of such
mandates on consumers, workers, and small businesses, including
any disproportionate impact in particular regions or industries
(CBO is currently required to estimate only the direct costs of
all federal private sector mandates that exceed $100 million
and the amount of federal financial assistance, if any,
provided by the legislation to assist with compliance costs).
It subjects the consideration of such legislation to a point of
order if it is not feasible for CBO to prepare such an estimate
(currently under UMRA, a point of order may apply only if it is
not feasible for CBO to prepare an intergovernmental mandates
estimate).
H.R. 350 prohibits consideration of any bill, joint
resolution, amendment, motion or conference report containing
private sector mandates whose direct costs exceed $100 million
(the current unfunded mandate point of order applies only to
unfunded intergovernmental mandates, the direct cost of which
exceeds $50 million, unless it is paid for with new federal
financial assistance).
H.R. 350 prohibits the Chair from recognizing Members for
more than one point of order for a committee's failure to
comply with the CBO report requirements with respect to private
sector mandates, or for private sector mandates contained in
any bill, joint resolution, amendment, motion or conference
report.
H.R. 350 amends clause 11(b) of House Rule XVIII to
preserve the availability in the Committee of the Whole of a
motion to strike an unfunded federal mandate (intergovernmental
and private sector), unless the rule is specifically waived by
the Rules Committee.
Committee Consideration
On January 19, 1999, Representatives Gary Condit and Rob
Portman introduced H.R. 350, the Mandates Information Act of
1999, which was referred to the Committee on Rules. On February
2, 1999, the Subcommittee on Rules and Organization of the
House and the Subcommittee on Legislative and Budget Process
held a joint hearing to review H.R. 350 and its implementation
under the Unfunded Mandates Reform Act (UMRA). The Committee on
Rules received testimony from the Hon. Gary Condit (D-CA); the
Hon. Rob Portman (R-OH); the Hon. Sherwood Boehlert (R-NY); Mr.
Jim Blum, Acting Director of the Congressional Budget Office;
Mr. Ryan Null, Owner of Tristate Electronic Manufacturing; Ms.
Angela Antonelli, Heritage Foundation Director for Economic
Policy Studies; and Ms. Maura Kealey, Deputy Director, Public
Citizen's Congress Watch.
On Tuesday, February 2, 1999, the Committee met to mark-up
H.R. 350. The Committee favorably reported H.R. 350, as
amended, by voice vote a quorum being present. During the mark-
up, one amendment in the nature of a substitute offered by Mr.
Linder was agreed to by voice vote. H.R. 350, as amended by
this substitute, is essentially the same as legislation (H.R.
3534) that passed the House last year by a vote of 279 to 132.
Background on the Legislation
On March 22, 1995, President Clinton signed into law the
Unfunded Mandates Reform Act, which amended title IV of the
Congressional Budget Act of 1974. A key component of the
Republican ``Contract With America,'' UMRA was one of the first
bills enacted by the 104th Congress.
Among other things, the purposes of UMRA are to: strengthen
the partnership between the federal government and state and
local governments; end the imposition of unfunded federal
mandates on state and local governments without full
information on the costs and effects of such mandates; promote
informed and deliberate decisions by Congress on the
appropriateness of all federal mandates affecting state and
local governments and the private sector; and establish new
points of order in the House and Senate for failure to comply
with certain requirements under the act.
A federal mandate is defined as a provision that imposes an
enforceable duty upon state, local or tribal governments, or
the private sector. An unfunded federal mandate is defined as a
mandate whose direct costs exceed $50 million for state and
local governments, and $100 million for the private sector.
Direct costs are defined as the aggregate amount that all
levels of government or the private sector are required to
spend in order to comply with the mandate or prohibited from
raising in revenue.
There are three major components to UMRA. One addresses
agency regulatory responsibilities. A second directs the
Advisory Council on Intergovernmental Relations (ACIR) to
undertake certain studies with respect to existing mandates
(ACIR was de-funded by Congress in fiscal year 1997). Thethird
contains congressional procedures for the consideration of legislation
containing federal mandates.
Procedures in the House and Senate
UMRA's congressional procedures are found in sections 423
through 426 of Part B of title IV of the Congressional Budget
and Impoundment Act of 1974. Sections 423 and 424 outline
specific reporting and estimating responsibilities for
congressional committees and the Congressional Budget Office
(CBO). Section 425 prohibits the consideration of bills, joint
resolutions, motions, amendments and conference reports in the
House and Senate if such legislation contains unfunded
intergovernmental federal mandates, or if a committee, when
reporting a bill or joint resolution, fails to include in
either the committee report or the Congressional Record a
statement from CBO estimating the direct costs of any mandates
(intergovernmental or private sector) contained in the
legislation.
Disposition of points of order in the House of Representatives
Section 426 prohibits the consideration of any order of
business resolution in the House of Representatives that waives
points of order against the application of Section 425. It also
contains procedures for the disposition of points of order in
the House of Representatives. Specifically, the chair will not
rule on the point of order. Rather, the chair will put to the
House or the Committee of the Whole, whichever the case may be,
the ``question of consideration with respect to the proposition
that is the subject of the point of order.'' The question of
consideration with respect to each point of order is subject to
20 minutes of debate--10 minutes by the Member initiating the
point of order and 10 minutes by an opponent. Following debate
on the question of consideration, the Members will vote on
whether to proceed with consideration of the bill, joint
resolution, amendment, motion or conference report.
UMRA also amended clause 11 of House Rule XVIII (which was
further modified by H.Res. 5 at the beginning of the 105th
Congress). Clause 11 of House Rule XVIII preserves the
availability in the Committee of the Whole of a motion to
strike an unfunded intergovernmental mandate. Neither a rule
restricting amendments nor one waiving all points of order is
sufficient to preclude a motion to strike an unfunded
intergovernmental mandate unless the rule specifically waives
clause 11 of House Rule XVIII.
In the 105th Congress, the Committee on Rules held original
jurisdiction hearings on October 30, 1997, and March 27, 1998,
on two similar private sector mandates bills and reported H.R.
3534 as amended under an open rule on May 6, 1998. The House
passed H.R. 3534 by a vote of 279-132 on May 19, 1998. The
Senate Committee on Government Affairs held hearings and
reported similar private mandates legislation, S. 389, but the
Senate did not take further action.
In the 106th Congress, on January 19, 1999, Representatives
Gary Condit and Rob Portman introduced H.R. 350, the Mandates
Information Act of 1999. This legislation attempts to improve
congressional deliberation and public awareness of private
sector mandates similar to the procedures that were enacted in
the UMRA in 1995 with regard to intergovernmental mandates.
Analysis of the Legislation (as Reported)
The Rules Committee approved an amendment in the nature of
a substitute which makes a number of technical and conforming
changes to H.R. 350 as introduced.
Sec. 1 of the committee substitute establishes the short
title as the ``Mandates Information Act of 1999''.
Sec. 2 of the committee substitute establishes a number of
congressional findings with respect to the need for additional
information on the costs of Federal private sector mandates
contained in proposed legislation.
Sec. 3 of the committee substitute outlines the purposes of
the bill which are to: (1) improve the quality of the
congressional deliberation with respect to proposed mandates on
the private sector, by providing the Congress with more
complete information about the effects of such mandates, and
ensuring that the Congress acts on such mandates only after
focused deliberation on the effects; and (2) enhance the
ability of the Congress to distinguish between private sector
mandates that harm consumers, workers, and small businesses,
and mandates that help those groups.
Sec. 4(a)(1) of the committee substitute amends Sec.
424(b)(2) of the Congressional Budget Act of 1974 to further
require CBO to estimate, when applicable, the aggregate impact
of proposed Federal private sector mandates on consumers,
workers and small businesses, including any disproportionate
impact in particular regions or industries. The estimate shall
also include an analysis of the effect of proposed Federal
private sector mandates on: consumer prices and the actual
supply of goods and services in consumer markets; worker wages,
worker benefits, and employment opportunities; and the hiring
practices, expansion, and profitability of businesses with 100
or fewer employees.
The phrase ``when applicable'' in Sec. 4(a)(1) qualifies
the requirement that CBO provide estimates under Sec.
424(b)(2)(B) of the Congressional Budget Act of 1974 in two
ways. The phrase is not intended to grant CBO broad discretion
to forgo preparing an estimate with respect to consumers,
workers and small businesses. It is, however, intended to
permit CBO to forgo an estimate of the impact of a Federal
private sector mandate on consumers, workers and small
businesses if CBO determines that the private sector mandate
has no impact on that group or whose impact on that group could
not be identified. Therefore, ifCBO determined there was no
impact on workers, CBO would not be required to estimate the impact on
workers, or the specific areas related to workers. The qualification is
also intended to permit CBO to forgo an analysis of any of the specific
information noted for consumers, workers and small businesses when CBO
determines that the impacts on that group do not include that specific
area. Therefore, if CBO determined that there was an impact on
consumers, but the impact would not affect the supply of goods and
services in consumer markets, CBO would not be required to provide an
analysis of such affects.
Sec. 4(a)(2) of the committee substitute amends Sec.
424(b)(3) of the Congressional Budget Act of 1974 to permit a
point of order against consideration of any bill or joint
resolution that is reported by a committee if it is not
feasible for CBO to prepare a Federal private sector mandates
estimate for publication before consideration of the bill or
joint resolution.
Sec. 4(a)(3) of the committee substitute amends Sec.
425(a)(2) of the Congressional Budget Act of 1974 to prohibit
the consideration of any bill, joint resolution, amendment,
motion, or conference report that would increase the direct
costs of Federal private sector mandates by $100 million or
more (adjusted annually for inflation) in the fiscal year in
which any of the Federal private sector mandate would be
effective or in any of the 4 fiscal years following such fiscal
year. In the case of a bill, joint resolution, amendment,
motion or conference report that provides a net reduction in
tax or tariff revenue, the measure's tax and tariff provisions
would not be considered in determining the direct costs of
Federal private sector mandates only for purposes of a point of
order under Sec. 425(a)(2) of the Congressional Budget Act of
1974.
For purposes of illustration, consideration of a bill
reported by the Committee on Ways and Means that contains tax
or tariff provisions which cause the $100 million threshold for
private sector mandates to be exceeded, but result in an
overall net reduction of tax or tariff revenue over a five-year
period, would not be subject to a Sec. 425(a)(2) point of
order, provided that the bill does not include other non-
revenue related Federal private sector mandates that exceed the
$100 million threshold. In contrast, if a bill contains tax or
tariff provisions which result in a net increase in revenues, a
Sec. 425(a)(2) point of order may apply.
Sec. 4(a)(4) of the committee substitute amends Sec. 425(c)
of the Congressional Budget Act of 1974 to permit a point of
order against legislative provisions in appropriations bills
that increase the direct costs of a Federal private sector
mandate by an amount that causes the $100 million threshold to
be exceeded.
Sec. 4(a)(5) of the committee substitute makes two
technical changes to Sec. 426(b)(2) of the Congressional Budget
Act of 1974 to conform with established practices by: (1)
striking the term ``section 425 or subsection (a) of this
section'' and inserting ``part B''; and (2) inserting the word
``legislative'' before the word ``language''.
Sec. 4(a)(6) of the committee substitute makes a technical
change to Sec. 426(b)(3) of the Congressional Budget Act to
conform with established practice by striking the term
``section 425 or subsection (a) of this section''. Sec. 4(a)(6)
further prohibits the Chair from recognizing Members for more
than one point of order with respect to the consideration of:
(1) any reported bill or joint resolution in which the
reporting committee fails to publish a statement for the
Director of the CBO on the direct costs of Federal private
sector mandates; or (2) any bill, joint resolution, amendment,
motion, or conference report that would increase the direct
costs of a Federal private sector mandate by an amount that
causes the $100 million threshold to be exceeded.
Sec. 4(a)(7) of the committee substitute amends Sec. 427 of
the Congressional Budget Act of 1974 to require the Director of
the CBO, at the written request of a Senator and to the extent
practical, to prepare an estimate of the direct costs of a
Federal private Sector mandate contained in an amendment of
such Senator.
Sec. 4(b) of the committee substitute amends clause 11(b)
of House Rule XVIII to preserve the availability in the
Committee of the Whole of a motion to strike private sector
mandates unless such mandates are expressly prohibited by the
terms of a special order.
Sec. 4(c) of the committee substitute expresses the
constitutional authority of Congress to make the rules changes
in Sec. 4 and exercise its rulemaking power in both the Senate
and the House to change such rules at any time.
Sec. 5 of the committee substitute amends Sec. 421(5)(B) of
the Congressional Budget Act of 1974 to ensure that Federal
entitlement programs such as Medicaid, child nutrition, and
foster care are considered unfunded intergovernmental mandates
if Congress imposes new conditions, places caps on funding, or
cuts funding without giving the States authority to adjust
those changes.
Matters Required Under the Rules of the House
Committee vote
Clause 3(b) of House rule XIII requires the results of each
record vote on an amendment or motion to report, together with
the names of those voting for and against, to be printed in the
committee report. No record votes were requested during the
consideration of H.R. 350.
Committee cost estimate
Clause 3(c)(2) of rule XIII requires each committee report
that accompanies a measure providing new budget authority, new
spending authority, or new credit authority or changing
revenues or tax expenditures to contain a cost estimate, as
required by section 308(a)(1) of the Congressional Budget Act
of 1974, as amended and, when practicable with respect to
estimates of new budget authority, a comparison of the total
estimated funding level for the relevant program (or programs)
to the appropriate levels under current law.
Clause 3(d) of rule XIII requires committees to include
their own cost estimates in certain committee reports, which
include, when practicable, a comparison of the total estimated
funding level for the relevant program (or programs) with the
appropriate levels under current law.
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office, pursuant to
section 403 of the Congressional Budget Act of 1974.
Congressional Budget Office estimates
Clause 3(c)(3) of rule XIII requires the report of any
committee on a measure which has been approved by the committee
to include a cost estimate prepared by the Director of the
Congressional Budget Office, pursuant to section 403 of the
Congressional Budget Act of 1974, if the cost estimate is
timely submitted. The following is the CBO cost estimate as
required:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 2, 1999.
Hon. David Dreier,
Chairman, Committee on Rules,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 350, the Mandates
Information Act of 1999.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mary
Maginniss.
Sincerely,
James L. Blum,
Acting Director.
Enclosure.
Congressional Budget Office Cost Estimate
H.R. 350--Mandates Information Act of 1999
The Congressional Budget Office (CBO) estimates that
enacting this legislation would result in no significant costs
to the federal government. The bill would not affect direct
spending or receipts; therefore, pay-as-you-go procedures would
not apply. H.R. 350 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
(UMRA) and would have no impact on the budgets of state, local,
or tribal governments.
H.R. 350 would amend the Congressional Budget Act to expand
the duties of CBO under UMRA. In particular, the bill would
require CBO to provide additional information when it
determines that a bill or joint resolution contains a private-
sector mandate with costs exceeding the threshold established
in UMRA ($100 million, in 1996 dollars, in any one year). That
information would include the impact of private-sector mandates
on consumers, workers, and small businesses (including any
disproportionate impact on particular regions or industries).
H.R. 350 also would make legislation subject to a point of
order if it includes private-sector mandates with costs
exceeding the threshold. Such costs would exclude amounts
attributable to tax or tariff provisions, if such provisions,
in aggregate, do not raise net revenues over the first five
fiscal years they were in effect.
Finally, the legislation would amend UMRA's definition of
intergovernmental mandate as it relates to certain large
entitlement grant programs (such as Medicare). Under this
amendment, changes to those programs would be considered
mandates unless the same bill that makes the change also gives
state and local governments new flexibility within the program
to offset any additional costs.
Based on the experiences of CBO and the Joint Committee on
Taxation (which provides CBO with revenue estimates) in
carrying out the provisions of UMRA, CBO estimates that neither
agency would incur significant additional costs to implement
the changes that would be made by H.R. 350. The number of bills
containing private-sector mandates with costs exceeding the
threshold is small--less than 20 instances in each of the last
two years--and the additional workload would not be
substantial. Furthermore, the proposed change in UMRA's
definition of intergovernmental mandates would not affect many
of the bills that CBO reviews each year. Any increase in costs
would be subject to the availability of appropriated funds for
CBO and the Joint Committee on Taxation. In addition, CBO
estimates that changes to Congressional procedures would not
result in additional costs to the Congress.
The CBO staff contacts are Mary Maginniss (for federal)
costs, Theresa Gullo (for intergovernmental mandates), and
Roger Hitchner (for private-sector mandates). This estimate was
approved by Robert A. Sunshine, Deputy Assistant Director for
Budget Analysis.
Constitutional authority
Clause 3(d)(1) of rule XIII requires each committee report
on a bill or joint resolution of a public character to include
a statement citing the specific powers granted to the Congress
in the Constitution to enact the law proposed by the bill or
joint resolution. The Committee cites Article 1, Section 5 of
the United States Constitution, which grants each House of
Congress the authority to determine the rules of its
proceedings, as its authority for reporting this bill.
Federal mandates
Section 423 of the Congressional Budget Act of 1974
requires the report of any committee on a bill or joint
resolution that includes any Federal mandate to include
specific information about such mandates. The Committee states
that H.R. 350 does not include any Federal mandate.
Preemption clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any committee on a bill or joint
resolution to include a committee statement on the extent to
which the bill or joint resolution is intended to preempt state
or local law. The Committee states that H.R. 350 is not
intended to preempt any state or local law.
Oversight findings
Clause 3(c)(1) of rule XIII requires each committee report
to contain oversight findings and recommendations required
pursuant to clause 2(b)(1) of rule X. The Committee has
oversight responsibility for Part B of the Congressional Budget
Act of 1974 and finds that, although the Unfunded Mandates
Reform Act is working as intended, Congress can benefit from
having more complete information about the effects of proposed
Federal private sector mandates. The Committee recommends the
passage of H.R. 350 as a means to improve the effectiveness of
UMRA.
Oversight findings and recommendations of the Committee on Government
Reform and Oversight
Clause 3(c)(4) of rule XIII requires each committee report
to contain a summary of the oversight findings and
recommendations made by the Government Reform Committee
pursuant to clause 4(c)(2) of rule X, whenever such findings
have been timely submitted. The Committee on Rules has received
no such findings or recommendations from the Committee on
Government Reform.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CONGRESSIONAL BUDGET ACT OF 1974
* * * * * * *
TITLE IV--ADDITIONAL PROVISIONS TO IMPROVE FISCAL PROCEDURES
* * * * * * *
Part B--Federal Mandates
SEC. 421. DEFINITIONS.
For purposes of this part:
(1) * * *
* * * * * * *
(5) Federal intergovernmental mandate.--The term
``Federal intergovernmental mandate'' means--
(A) * * *
(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) the provision would increase
the stringency of conditions of
assistance to State, local, or tribal
governments under the program; or
(II) the provision 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) that legislation, statute, or
regulation does not provide the State,
local, or tribal governments that
participate in the Federal program
[lack] new or expanded 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.
* * * * * * *
SEC. 424. DUTIES OF THE DIRECTOR; STATEMENTS ON BILLS AND JOINT
RESOLUTIONS OTHER THAN APPROPRIATIONS BILLS AND
JOINT RESOLUTIONS.
(a) * * *
(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) * * *
(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) when applicable, the impact (including
any disproportionate impact in particular
regions or industries) on consumers, workers,
and small businesses, of the Federal private
sector mandates in the bill or joint
resolution, including--
(i) an analysis of the effect of the
Federal private sector mandates in the
bill or joint resolution on consumer
prices and on the actual supply of
goods and services in consumer markets;
(ii) an analysis of the effect of the
Federal private sector mandates in the
bill or joint resolution on worker
wages, worker benefits, and employment
opportunities; and
(iii) an analysis of the effect of
the Federal private sector mandates in
the bill or joint resolution on the
hiring practices, expansion, and
profitability of businesses with 100 or
fewer employees; and
[(B)] (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 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. 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.
* * * * * * *
SEC. 425. LEGISLATION SUBJECT TO POINT OF ORDER.
(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 private sector mandates (excluding any
direct costs that are attributable to revenue resulting
from tax or tariff provisions of any such measure if it
does not raise net tax and tariff revenues over the 5-
fiscal-year period beginning with the first fiscal year
such measure affects such revenues) by an amount that
causes the thresholds specified in section 424(b)(1) to
be exceeded; and
[(2)] (3) 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) * * *
* * * * * * *
(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.
* * * * * * *
SEC. 426. PROVISIONS RELATING TO THE HOUSE OF REPRESENTATIVES.
(a) * * *
(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] part B must specify the
precise legislative 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] part B, the Chair shall put the question
of consideration with respect to the proposition that
is the subject of the points of order, except that not
more than one point of order shall be recognized by the
Chair under section 425(a)(1) or (a)(2).
* * * * * * *
SEC. 427. REQUESTS TO THE CONGRESSIONAL BUDGET OFFICE FROM SENATORS.
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.
* * * * * * *
----------
comparative print
Clause 3(g) of rule XIII requires that, whenever the
Committee on Rules reports a resolution amending or repealing
the Rules of the House of Representatives, the accompanying
report must contain a comparative print showing the changes in
existing rules proposed to be made by the resolution.
Changes in existing Rules of the House of Representatives
made by the bill, as reported, are shown as follows (existing
rules proposed to be omitted are enclosed in black brackets,
new matter is printed in italic, existing rules in which no
change is proposed are shown in roman):
CLAUSE 11(b) OF RULE XVIII OF THE HOUSE OF REPRESENTATIVES
RULE XVIII.
* * * * * * *
Unfunded mandates
11. (a) * * *
(b) In this clause the term ``unfunded mandate'' means a
Federal [intergovernmental] mandate the direct costs of which
exceed the threshold otherwise specified for a reported bill or
joint resolution in section [424(a)(1)] 424(a)(1) or (b)(1) of
the Congressional Budget Act of 1974.
* * * * * * *
Views of committee members
Clause 2(c) of rule XIII requires each committee to afford
a three day opportunity for members of the committee to file
supplemental, minority, or additional views and to include the
views in its report. Although neither requirement applies to
the Committee, the Committee always makes the maximum effort to
provide its members with such an opportunity. The following
views were submitted:
Dissenting Views
The Democratic Members of the Rules Committee have three
major concerns about this bill.
First, we are concerned about the ``point of order'' scheme
developed in the original bill and continued in this one. It
can be too easily abused to close off debate for partisan,
political purposes. The ``point of order'' is not a ``point of
order'' in the true sense. Rather it is automatically
transformed into a question of consideration. That is, if any
Member asserts the existence of an unfunded mandate in a
measure, the House must, without any judgment by the Chair,
debate for 20 minutes and, by a simple majority vote, determine
whether to proceed to consider the measure. In fact, the very
first time the unfunded mandate point of order was raised, in
1996, the majority party used it to block consideration of a
motion to recommit that, according to the Congressional Budget
Office, did not contain an unfunded mandate. It was an
offensive breach of fair play because the motion to recommit is
the only procedural tool guaranteed to the minority in a House
which is run and ruled by the majority.
The first experience was, fortunately, not the norm. On the
whole, we are encouraged that the unfunded mandate point of
order has not been misused. Important information has been
available about the impact of legislation on the public sector,
and Members generally have used restraint against exploiting
the parliamentary procedure for political purposes. We urge
Members to continue to act in a responsible way but the
potential for abuse remains and the majority has done nothing
to fix this defect.
Our second objection is about the effect of the measure on
efforts to promote social justice. Some of the finest
legislative efforts of this nation--providing food to the
hungry, protecting public health and safety, cleaning up
pollution, enforcing the civil rights of persecuted individuals
or compelling parents to fulfill their financial obligations to
their children--have, by necessity, imposed burdens on
businesses and individuals. We fear that, without amendment,
the bill tilts the playing field against such legislation. One
witness at the hearing, Maura Kealey of Public Citizen's
Congress Watch, said: ``[H.R. 350] will allow Members of
Congress to hide behind a procedural vote to torpedo vital
legislation with strong public support--food safety, clean air
and water, minimum wage increase, patients' bill of rights--
rather than vote it up or down on its merits.'' Amendments such
as the one offered by Representative Waxman during last year's
debate would vastly improve the legislation.
Our third objection to the bill is aimed at a provision
which was added by the majority leadership at the last minute
last year and is included again in the bill reported by the
Committee. The language, as proposed by Mr. Dreier, excludes
from the point of order those measures containing revenue
increases that net out with tax cuts over a five year period.
This provision is flawed in two ways: it moves us away from the
goal of reviewing all private sector mandates and it injects
the unfunded mandate process into the fundamentally political
battleground of decisions on taxes and spending.
We want to be perfectly clear. Tax cuts are not unfunded
mandates under the definition of the law, nor do we believe
they should be. Members who supported Mr. Dreier's exemption
argued last year that the budget rules require tax cuts to be
paid for by either spending cuts or tax increases. They contend
that, without the Dreier language, the new unfunded mandates
provisions will unfairly penalize efforts to pay for those cuts
with tax increases. We would point out, in all fairness, that
decisions to pay for tax cuts by decreasing spending would also
be caught up in the point of order if it imposes direct costs
on businesses or causes a loss of revenue to states, localities
or tribal governments. If certain spending cuts can be subject
to unfunded mandate points of order, there is no reason certain
tax increases should not be. We should not favor one form of
paying for a tax cut over another, or to limit the various ways
of paying for tax cuts.
We believe that the point of order should apply in all
cases without bias as we debate policy options. One of the main
objectives of the unfunded mandate laws is to encourage bill
authors and committees to consider burdens as well as benefits
at an early stage of development. Mr. Portman made the point in
last year's floor debate that the point of order acts as a
deterrent in committee as well as a final enforcement tool on
the floor. He noted that public sector mandates were more often
not stopped on the Floor but curtailed at the committee level
because the committees were forced to come up with ways of
getting things through Congress.
Certainly, the unfunded mandate law should stimulate debate
and new ways of thinking, but we believe the procedural tool
should be neutral. It should not be weighted to influence or
direct a particular type of policy solution. The exemption
proposed in this legislation forces us to look at the way
revenues are used before applying the unfunded mandate point of
order, and presents a parliamentary bias toward tax hikes over
spending reductions. For example, a tax increase on coal that
is spent on black lung benefits or environmental clean-up would
be subject to a point of order, but the same tax increase on
coal that is spent for a tax break for ethanol would not be
subject to a point of order.
We also believe a tax is a mandate regardless of where it
appears. The Dreier proposal to exempt certain tax hikes
creates a loophole in the mandates bill, and erodes the basic
intent to focus attention on the potential burden of any policy
on individuals and businesses. In other words, the new language
tells the small businesses in our districts that a tax hike
facing them is not worth the consideration of the House as long
as it is used to give a tax break to someone else.
Finally, we would point out a certain inconsistency in the
arguments of some Members against our concern about social
justice and for the exemption of tax hikes which are used to
offset tax cuts. These Members assure those of us who are
concerned about losing important environmental protections or
worker rights that the point of order scheme is intended to
provide information and the time to make an informed decision;
a majority vote will allow Members to take up the measure. In
other words, the point of order is a speed bump not a red
light. By that reasoning, Members who support the Dreier
exemption should have nothing to fear from an informed debate
about tax increases, no matter where they fall.
We remain concerned over this bill for these reasons. While
our experience with public sector mandates has been reasonably
encouraging, we continue to be deeply concerned about the point
of order scheme and will remain vigilant that it not be abused
for any purpose.
We also believe we need a procedure that is fair, even
handed, and not tilted toward one policy outcome over another.
The special exemption for certain tax increases should be
dropped; we should not have to tell our constituents that a gas
tax spent to repair bridges would be subject to debate, but the
same tax used to give a tax break to a competing part of the
transportation industry would not need separate debate. And
H.R. 350 should not be used to erect procedural hurdles against
legislation designed to promote social justice. Amendments
should be adopted so that the bill does not so concentrate on
the burdens to businesses that it ignores the benefits of
feeding the hungry, cleaning the environment, protecting public
health and safety, and enforcing civil rights.
Joe Moakley.
Martin Frost.
Tony P. Hall.
Louise McIntosh Slaughter.