[Federal Register Volume 60, Number 99 (Tuesday, May 23, 1995)]
[Pages 27324-27325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12591]



Proposed Criteria for Reviewing and Making Recommendations on 
Federal Mandates

ACTION: Notice of proposed criteria.


SUMMARY: The Advisory Commission on Intergovernmental Relations (ACIR) 
is soliciting public comments on its proposed criteria for 
investigating and reviewing existing federal mandates and formulating 
recommendations to modify, suspend, or terminate specific mandates on 
State, local, or Tribal governments.

DATES: Comments must be received by June 22, 1995.

ADDRESSES: Comments should be sent to Philip M. Dearborn, Director, 
Government Finance Research, ACIR, 800 K Street NW., Suite 450 South, 
Washington, DC 20575.

FOR FURTHER INFORMATION CONTACT: Philip Dearborn at 202/653-5538.

SUPPLEMENTARY INFORMATION: The Advisory Commission on Intergovernmental 
Relations (ACIR, 42 U.S.C. 4271) is charged in Sec. 302 of the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 67) with 
investigating and reviewing the role of Federal mandates in 
intergovernmental relations and formulating recommendations to modify, 
suspend, or terminate specific mandates on State, local, or Tribal 
    Section 302 defines ``Federal mandate'' very broadly for the 
purposes of the ACIR review as ``any provision in statute or regulation 
or any Federal court ruling that imposes an enforceable duty on State, 
local, or Tribal governments including a condition of Federal 
assistance or a duty arising from participation in a voluntary Federal 
    ACIR will select for in-depth review those Federal mandates 
generally recognized as creating significant concerns within the 
intergovernmental system. In accordance with Public Law 104-4, ACIR 
will give review priority to mandates that are subject to judicial 
proceedings in Federal courts. To formulate its recommendations, ACIR 
will evaluate each mandate to determine the specific conditions causing 
    The Commission will make the final decisions about which mandates 
it will review based on two types of criteria:
    (1) Those that provide a basis for identifying mandates of 
significant concern; and
    (2) Those that provide a basis for formulating recommendations to 
modify, suspend, or terminate specific mandates that are of concern.

Criteria for Identifying Mandates of Significant Concern

    In general, Federal mandates will be selected for intensive review 
if they have one or more of the following characteristics:
    1. The mandate requires State, local, or Tribal governments to 
expend substantial amounts to their own resources in a manner that 
significantly distorts their spending priorities. This addresses 
mandates that require more than incidental amounts of spending. It will 
not include all Federal mandates that require governments to spend 
    2. The mandate establishes terms or conditions for Federal 
assistance in a program or activity in which State, local, or Tribal 
governments have little discretion over whether or not to participate. 
This will include mandates in entitlements and discretionary programs. 
It will exclude conditions of grants in small categorical programs that 
are distributed on the basis of annual or periodic applications and 
that are received only by a limited number of governments.
    3. The mandates abridges historic powers of State, local, or Tribal 
governments, the exercise of which would not adversely affect other 
jurisdictions. This will include mandates that have an impact on 
internal State, local, and Tribal government affairs related to issues 
not widely acknowledged as being of national concern and for which the 
absence of the mandate would not create adverse spillover effects.
    4. The mandate imposes compliance requirements that make it 
difficult or impossible for State, local, and Tribal governments to 
implement. Implementation delays, issuance of court orders, or 
assessment of fines may be indicative of mandate requirements that go 
beyond State, local, or Tribal fiscal resources, or administrative or 
technological capacity, after reasonable efforts at compliance have 
been made.
    5. The mandate has been the subject of widespread objections and 
complaints by State and local governments and their representatives. 
This will include mandates that are based on problems of national 
scope, but are not federally funded.

Criteria for Formulating Recommendations

    ACIR will investigate the specific characteristics of each mandate 
causing significant concern in order to formulate a recommendation to 
modify, suspend, or terminate the mandate. For purposes of formulating 
such recommendations, ACIR will focus on specific provisions in laws, 
regulations, or court orders.
    When a mandate affects a State or local program that directly 
competes with a comparable private sector activity, ACIR will consider 
the effects on both the government and private sector in making its 
recommendation. ACIR also will consider (1) impacts of mandates on 
working men and women and (2) mandates for utilization of metric 
    ACIR will investigate each mandate selected for intensive review to 
determine whether or not they have one or more of the following 
1. Federal Intrusion
     Requirements are not based on demonstrated national needs.
     Requirements are related to issues not widely recognized 
as national concerns or as being within the appropriate scope of 
Federal activities.
     Requirements are based on problems of national scope, but 
which State, local, or Tribal governments have been able or willing to 
solve effectively, either independently or through voluntary 
     Requirements are based on problems of national scope, but 
are not federally funded.
    These mandates should be terminated or modified to express non-
binding national guidelines. In some instances, the basis provision 
could be retained in Federal law, but compliance could be made 
2. Unnecessarily Rigid
     Provisions do not permit adjustments to the circumstances 
or needs of individual jurisdictions.
     Provisions restrict flexibility to use less costly or less 
onerous alternative procedures to achieve the goal of the mandate.
     Provisions do not allow governments to set implementation 
or compliance priorities and schedules, taking into account risk 
analysis, greatest benefit, or other factors.
    These mandates should be modified to provide options, waivers, or 
exemptions, or be terminated. [[Page 27325]] 
3. Unnecessarily Complex
     Requirements are unnecessarily detailed and difficult to 
     Provisions are too process specific rather than results 
    These mandates should be simplified, clarified, or otherwise 
revised to facilitate understanding and implementation, or be 
4. Unclear Goals or Standards
     Goals or standards are too vague, confusing, or poorly 
written to permit clear or consistent implementation of requirements or 
measurement of results.
    These goals or standards should be rewritten or the mandate should 
be terminated.
5. Contradictory or Inconsistent
     Provisions in one mandate may make it difficult or 
impossible to comply with other provisions in the same or other 
Federal, State, local, or Tribal laws.
     Requirements use conflicting and confusing definitions and 
standards. These mandates should be modified to bring conflicting 
requirements into conformance. In some instances, it may be appropriate 
to terminate one or all of the requirements. Where possible, common 
definitions and standards should be used, especially in planning and 
reporting requirements.
6. Duplicative
     Provisions in two or more Federal mandates may have the 
same general goals but require different actions for compliance.
    These mandates could be terminated, consolidated, to modified or 
facilitate compliance.
7. Obsolete
     Provisions were enacted when conditions or needs were 
different or before existing technologies were available.
     Provisions have been superseded by later requirements.
    These mandates should be modified to reflect current conditions or 
existing technology. If a mandate is no longer necessary or has been 
superseded, it should be terminated.
8. Inadequate Scientific Basis
     Provisions were enacted based on inadequate or 
inconclusive scientific research or knowledge.
     Provisions are not based on current, peer-reviewed 
scientific research.
     Provisions are not justified by risk assessment or cost-
    These mandates should be terminated or modified to reflect current 
science. In some cases, suspension of the mandate may be appropriate to 
provide time for additional research.
9. Lacking in Practical Value
     Requirements do not achieve the intended results.
     Requirements are perceived by citizens as unnecessary, 
insignificant, or ineffective, thereby producing credibility problems 
for governments.
     Requirements have high costs relative to the importance of 
the issue.
    These mandates should be evaluated to determine whether or not they 
are effective. If they cannot be shown to be effective and worthy of 
public support, they should be terminated. If they are effective, it 
still may be appropriate to suspend the mandates to allow time for 
public education and consensus building on their value.
10. Resource Demands Exceed Capacity
     Requirements for compliance exceed State, local, and 
Tribal governments' fiscal, administrative, and/or technological 
    These mandates should be terminated or modified to reduce 
compliance problems, or assistance could be provided to upgrade 
capacity. In some instances, compliance schedule extensions or 
exemptions may be appropriate.
11. Compounds Fiscal Difficulties
     Compliance with the requirements of any one mandate or 
with multiple mandates compounds fiscal difficulties of governmental 
jurisdictions that are experiencing fiscal stress.
    In these situations, certain of the mandates affecting the 
jurisdictions--exclusive of those that are vital to public health or 
safety--should be considered for partial or total suspension until the 
government experiencing fiscal stress is able to comply. The conditions 
triggering consideration of such suspensions should include:
    a. Governments faced with costs dramatically out of line with their 
revenue bases, as determined by comparisons with other similar 
governments that are complying; or
    b. Governments that are experiencing severe fiscal distress for 
reasons not immediately within their control. There should be some 
definitive evidence of severe problems, such as State receivership, 
State declaration of distress, Chapter 9 bankruptcy, or a debt rating 
below investment grade. This should not include annual budget balancing 

    Dated: May 18, 1995.
William E. Davis III,
Executive Director.
[FR Doc. 95-12591 Filed 5-22-95; 8:45 am]