Unfunded Mandates: Reform Act Has Little Effect on Agencies' Rulemaking
Actions (Letter Report, 02/04/98, GAO/GGD-98-30).
Pursuant to a congressional request, GAO reviewed federal agencies'
implementation of the Unfunded Mandates Reform Act of 1995 (UMRA),
focusing on what effect title II of UMRA has had on agencies' rulemaking
actions.
GAO noted that: (1) the enactment of title II of UMRA appears to have
had only limited direct impact on agencies' rulemaking actions in the
first 2 years since its implementation; (2) most of the economically
significant rules promulgated during UMRA's first two years were not
subject to the requirements of title II; (3) title II contains
exemptions that allowed agencies not to take certain actions if they
determined that the actions were duplicative or not reasonably feasible;
(4) written statements were not on file at the Congressional Budget
Office for 80 of the 110 economically significant rules promulgated in
the first 2 years of UMRA's implementation; (5) GAO concluded that UMRA
did not require written statements for 78 of these 80 rules; (6) some of
the rules did not have an associated notice of proposed rulemaking; (7)
many did not impose an enforceable duty other than as a condition of
federal financial assistance or as a duty arising from participation in
a voluntary program; (8) others did not result in expenditures of $100
million by the state, local, and tribal governments, in the aggregate,
or by the private sector in any 1 year; (9) the written statements that
agencies prepared for 30 of the economically significant rules appeared
to meet most of the UMRA requirements for those statements; (10) in
almost every case, the written statements were not separate documents
specifically prepared to comply with UMRA but were the rules themselves
and any associated economic analysis; (11) also, sections 202 and 205:
(a) give agencies discretion in how they can comply with the
requirements; and (b) are similar to requirements in previous statutes
and Executive Order 12866, which was issued in 1993; (12) during the
first 2 years of UMRA's implementation, the requirement in section 204
of the act that agencies develop a process to consult with state, local,
and tribal governments before promulgating any significant federal
intergovernmental mandate appears to have applied to no more than four
Environmental Protection Agency rules and no rules from other agencies;
(13) section 203 small government plans were not developed for any of
the 73 final rules promulgated during the first 2 years of UMRA
implementation; (14) officials in the four agencies that GAO contacted
said none of their final rules had a significant or unique effect on
small governments; and (15) the Office of Management and Budget
designated three UMRA pilot programs in two agencies, but none of these
efforts appears to have been initiated because of UMRA.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: GGD-98-30
TITLE: Unfunded Mandates: Reform Act Has Little Effect on
Agencies' Rulemaking Actions
DATE: 02/04/98
SUBJECT: Executive orders
Proposed legislation
Agency proceedings
Intergovernmental relations
Local governments
Legislative procedures
IDENTIFIER: National Performance Review
******************************************************************
** This file contains an ASCII representation of the text of a **
** GAO report. Delineations within the text indicating chapter **
** titles, headings, and bullets are preserved. Major **
** divisions and subdivisions of the text, such as Chapters, **
** Sections, and Appendixes, are identified by double and **
** single lines. The numbers on the right end of these lines **
** indicate the position of each of the subsections in the **
** document outline. These numbers do NOT correspond with the **
** page numbers of the printed product. **
** **
** No attempt has been made to display graphic images, although **
** figure captions are reproduced. Tables are included, but **
** may not resemble those in the printed version. **
** **
** Please see the PDF (Portable Document Format) file, when **
** available, for a complete electronic file of the printed **
** document's contents. **
** **
** A printed copy of this report may be obtained from the GAO **
** Document Distribution Center. For further details, please **
** send an e-mail message to: **
** **
** **
** **
** with the message 'info' in the body. **
******************************************************************
Cover
================================================================ COVER
Report to the Committee on Governmental Affairs, U.S. Senate
February 1998
UNFUNDED MANDATES - REFORM ACT HAS
HAD LITTLE EFFECT ON AGENCIES'
RULEMAKING ACTIONS
GAO/GGD-98-30
Unfunded Mandates
(410112)
Abbreviations
=============================================================== ABBREV
APA - Administrative Procedure Act
CBO - Congressional Budget Office
DOE - Department of Energy
DOL - Department of Labor
DOT - Department of Transportation
ECOS - Environmental Council of States
EPA - Environmental Protection Agency
HHS - Department of Health and Human Services
NPR - National Performance Review
OIRA - Office of Information and Regulatory Affairs
OMB - Office of Management and Budget
RISC - Regulatory Information Service Center
SBA - Small Business Administration
UMRA - Unfunded Mandates Reform Act of 1995
USDA - United States Department of Agriculture
Letter
=============================================================== LETTER
B-276598
February 4, 1998
The Honorable Fred Thompson
Chairman
The Honorable John Glenn
Ranking Minority Member
Committee on Governmental Affairs
United States Senate
During the past 20 years, state, local, and tribal governments as
well as businesses have expressed concerns about the costs associated
with federal regulations. Because of those concerns, Congress has
enacted a number of statutes designed to reform the process by which
federal agencies develop and issue regulations.\1 Some of these
statutory requirements are found in title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), which was passed early in the 104th
Congress and was signed by the President on March 22, 1995.\2
Title II of UMRA has various sections, each of which requires
rulemaking agencies or the Office of Management and Budget (OMB) to
take certain actions. For example, section 202 of UMRA generally
requires federal agencies (other than independent regulatory
agencies)\3 to prepare "written statements" containing specific
information for any rule\4 for which a proposed rule was published
that includes a federal mandate that may result in the expenditure of
$100 million or more in any 1 year by state, local, and tribal
governments, in the aggregate, or the private sector. A "mandate" is
defined in UMRA as an "enforceable duty" that is not a condition of
federal assistance and does not arise from participation in a
voluntary federal program. For those rules requiring a written
statement, other sections of UMRA require the following:
-- Section 205 of UMRA requires agencies to consider a reasonable
number of regulatory alternatives and select the one that is the
least costly, most cost-effective, or least burdensome and that
achieves the purpose of the rule.
-- Section 203 of UMRA states that agencies must develop plans to
involve small governments in the development of regulatory
proposals that have a significant or unique effect on those
entities.\5
-- Section 204 of UMRA requires agencies to develop processes to
consult with representatives of state, local, and tribal
governments in the development of regulatory proposals
containing "significant [f]ederal intergovernmental mandates."
-- Section 206 of UMRA requires the Director of OMB to collect the
written statements prepared under section 202 and periodically
forward them to the Director of the Congressional Budget Office
(CBO).
-- Section 207 of UMRA requires the OMB Director to establish pilot
programs in at least two agencies to test regulatory approaches
that reduce the burden on small governments.
Title IV of UMRA sets forth the extent to which agencies' compliance
with the written statement and small government plan requirements in
the act are subject to judicial review.
This report responds to your request that we review federal agencies'
implementation of UMRA. The overall objective of our review was to
determine what effect title II of UMRA has had on agencies'
rulemaking actions. To accomplish this objective, we reviewed
agencies' implementation of the substantive provisions of title II
(secs. 202 through 205) for "economically significant" rules
published in the Federal Register between March 22, 1995, and March
22, 1997.\6 Because of the large number of agencies that issue rules,
we focused some of our efforts on the four agencies that issued the
greatest number of economically significant rules and produced the
greatest number of written statements during this period: the
Departments of Agriculture (USDA), Health and Human Services (HHS),
and Transportation (DOT) and the Environmental Protection Agency
(EPA).\7 We also examined pilot projects established by OMB under
section 207 of UMRA and searched for court decisions resulting from
the judicial review provisions in title IV of the act.
--------------------
\1 These statutes include the Paperwork Reduction Acts of 1980 and
1995, the Regulatory Flexibility Act, and the Small Business
Regulatory Enforcement Fairness Act of 1996.
\2 Public Law No. 104-4, 109 Stat. 48 (1995).
\3 Independent regulatory agencies include such agencies as the
Federal Communications Commission, the Securities and Exchange
Commission, and the Consumer Product Safety Commission.
\4 In this report, the "rule" includes both the revisions to the text
of the Code of Federal Regulations and the preamble to the text
revisions.
\5 The term "small governments" is defined in title I of UMRA as
having the same meaning as section 601(5) of title 5, United States
Code, and any tribal government. Section 601(5) generally defines a
small government as "governments of cities, counties, towns,
townships, villages, school districts, or special districts, with a
population of less than fifty thousand . . . ."
\6 According to Executive Order 12866, an economically significant
rule is one that may "[h]ave an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or [s]tate, local, or tribal
governments or communities."
\7 Within HHS, the only agencies that issued economically significant
rules during this period were the Food and Drug Administration and
the Health Care Financing Administration.
RESULTS IN BRIEF
------------------------------------------------------------ Letter :1
The enactment of title II of UMRA appears to have had only limited
direct impact on agencies' rulemaking actions in the first 2 years
since its implementation. Most of the economically significant rules
promulgated during UMRA's first 2 years were not subject to the
requirements of title II. Also, title II contains exemptions that
allowed agencies not to take certain actions if they determined the
actions were duplicative or not "reasonably feasible." The title also
required agencies to take certain actions that they already were
required to take or had completed or that were already under way.
Written statements were not on file at CBO for 80 of the 110
economically significant rules promulgated in the first 2 years of
UMRA's implementation. We concluded that UMRA did not require
written statements for 78 of these 80 rules. Some of the rules did
not have an associated notice of proposed rulemaking. Many did not
impose an enforceable duty other than as a condition of federal
financial assistance or as a duty arising from participation in a
voluntary program. Other rules did not result in "expenditures" of
$100 million by state, local, and tribal governments, in the
aggregate, or by the private sector in any 1 year. The two rules
that we believe should have had written statements on file at CBO but
did not were EPA's proposed rules establishing national ambient air
quality standards for ozone and particulate matter. Nevertheless,
these rules appeared to satisfy the substantive UMRA written
statement requirements.
The written statements that agencies prepared for 30 of the
economically significant rules appeared to meet most of the UMRA
requirements for those statements. In almost every case, the written
statements were not separate documents specifically prepared to
comply with UMRA but were (as permitted in the act) the rules
themselves and any associated economic analysis. Although many
agencies did so, section 205 of UMRA does not require agencies to
identify in the written statement (or elsewhere in writing) the
regulatory alternatives that they considered or why one of the
alternatives was selected. Also, sections 202 and 205 (1) give
agencies discretion in how they can comply with the requirements and
(2) are similar to requirements in previous statutes and Executive
Order 12866, which was issued in 1993.
During the first 2 years of UMRA's implementation, the requirement in
section 204 of the act that agencies develop a process to consult
with state, local, and tribal governments before promulgating any
significant federal intergovernmental mandate appears to have applied
to no more than four EPA rules and no rules from other agencies. EPA
generally used a consultation process that was in place before UMRA
was enacted to satisfy this requirement. Other agencies also said
they would use preexisting consultation processes if they issued a
significant intergovernmental mandate.
Section 203 small government plans were not developed for any of the
73 final rules promulgated during the first 2 years of UMRA
implementation. Officials in the four agencies that we contacted
said none of their final rules had a significant or unique effect on
small governments. OMB designated three UMRA pilot programs in two
agencies, but none of these efforts appears to have been initiated
because of UMRA. For example, one of the EPA pilots was started
because of requests from representatives of two state governments.
Finally, one case had been decided in which the court refused to
invalidate a rule on the basis of the plaintiff's allegation that the
agency had not prepared an UMRA written statement.
BACKGROUND
------------------------------------------------------------ Letter :2
The process of issuing and enforcing regulations is one of the basic
tools of government. The main elements of the federal rulemaking
process are described in section 553 of the Administrative Procedure
Act (APA), which was enacted in 1946. The APA generally requires
agencies to (1) publish a notice of proposed rulemaking in the
Federal Register; (2) allow interested persons an opportunity to
participate in the rulemaking process by providing "written data,
views, or arguments"; and (3) publish the rule 30 days before it
becomes effective. The notice of proposed rulemaking must include
reference to the legal authority under which the rule is proposed and
state the time, place, and nature of public rulemaking proceedings.
In some cases, agencies issue advance notices of proposed rulemaking
before a formal notice is published to receive public reaction to a
rule as early as possible.
Although the federal government has long regulated economic activity,
several major new statutes were enacted in the 1960s and 1970s that
prompted regulation in such areas as environmental quality, workplace
safety, and consumer protection. By the 1980s, an array of federal
regulations were in place that affected many of the decisions made by
businesses and by other governmental units. For some time, state,
local, and tribal governments have expressed concerns about the
difficulty of complying with federal regulatory mandates without
additional resources. Business groups have voiced similar concerns
about rising costs that they said were being imposed by federal
regulations.
Both the executive and legislative branches have responded to these
public and private sector concerns by attempting to reform the
federal regulatory process. For example, in 1981, President Reagan
issued Executive Order 12291 on "Federal Regulation," which gave OMB
the authority to review all new regulations for consistency with
administration policies. The order also required agencies to prepare
a "regulatory impact analysis" for each major rule, describing the
costs, benefits, and alternatives to the rule. In September 1993,
President Clinton issued Executive Order 12866 on "Regulatory
Planning and Review," which, among other things, established
"principles of regulation" (e.g., requiring agencies to "identify and
assess alternative forms of regulation" and to tailor their
regulations to "impose the least burden on society") and specific
processes that agencies had to follow (e.g., conduct cost-benefit
analyses for all economically significant rules). This executive
order also states that agencies must, wherever feasible, "seek views
of appropriate [s]tate, local, and tribal officials before imposing
regulatory requirements that might significantly or uniquely affect
those governmental entities."
In October 1993, the President issued Executive Order 12875 on
"Enhancing the Intergovernmental Partnership," which, among other
things, requires each agency to "develop an effective process to
permit elected officials of state, local, and tribal governments to
provide meaningful and timely input in the development of regulatory
proposals containing significant unfunded mandates." The President
also made regulatory reform one of the central elements of the
administration's National Performance Review (NPR), which is a major
management reform effort that was started in March 1993 under the
direction of Vice President Gore and is intended to identify ways to
make the government work better and cost less.
Congress has been equally active in attempting to reform the federal
regulatory process. For example, in 1980 Congress enacted the
Regulatory Flexibility Act, which requires agencies to assess the
impact of their regulations on small entities (e.g., businesses and
governments) and to publish their plans for new regulations.\8 During
the 104th Congress, numerous legislative initiatives were introduced
that attempted to reform the regulatory process. One of the first
such efforts was UMRA, which was introduced as S. 1 in the Senate on
January 4, 1995, and was enacted on March 22, 1995. Title I of UMRA
established new procedures designed to ensure that Congress fully
considers the potential effects of unfunded federal mandates before
imposing them on state, local, and tribal governments or the private
sector. Among other reforms, the procedures call for CBO to provide
statements to authorizing committees about whether reported bills
contain mandates and, if so, what their costs would be.\9
Title II of UMRA, entitled "Regulatory Accountability and Reform,"
contains the requirements imposed on federal agencies during the
rulemaking process, and took effect on the day the act was signed by
the President. Section 201 states that "[e]ach agency shall, unless
otherwise prohibited by law, assess the effects of [f]ederal
regulatory actions on [s]tate, local, and tribal governments, and the
private sector (other than to the extent that such regulations
incorporate requirements specifically set forth in law)." Other
sections in title II require agencies to
-- prepare a written statement containing specific descriptions and
estimates for any proposed rule or any final rule for which a
proposed rule was published that includes any federal mandate
that may result in the expenditure of $100 million or more in
any 1 year by state, local, and tribal governments, in the
aggregate, or the private sector--one of the items required in
the written statement is a qualitative and quantitative
assessment of the anticipated costs and benefits of the federal
mandate (sec. 202);
-- "identify and consider a reasonable number of regulatory
alternatives" and select the least costly, most cost-effective,
or least burdensome alternative (or explain why that alternative
was not selected) for each rule for which a written statement is
prepared (sec. 205);
-- develop a plan in which agencies provide notice of regulatory
requirements to potentially affected small governments; enable
officials of those governments to provide input in the
development of regulatory proposals; and inform, educate, and
advise those governments on compliance with the requirements
before establishing any regulatory requirements that might
"significantly or uniquely" affect small governments (sec.
203); and
-- develop an effective process to permit elected officers of
state, local, and tribal governments (or their designees) to
provide input in the development of regulatory proposals
containing significant intergovernmental mandates (sec. 204).
Section 206 of UMRA requires the OMB Director to collect the written
statements prepared by the agencies and periodically forward them to
the CBO Director. Section 207 requires the OMB Director to establish
pilot programs in at least two agencies to test innovative and
flexible regulatory approaches to reduce the reporting and compliance
burden on small governments while meeting statutory goals and
objectives. Section 208 requires the OMB Director to submit annual
reports to Congress detailing agencies' compliance with title II of
UMRA.
Title III of UMRA required the Advisory Commission on
Intergovernmental Relations to conduct a study reviewing federal
mandates, and title IV established judicial review under the act.
The committee reports for the Senate bill that ultimately resulted in
UMRA indicate that Congress was aware that the bill duplicated
existing requirements in many respects.\10 For example, the report by
the Senate Committee on the Budget stated that, except for the
requirement for small government plans, "the bill will not impose new
requirements to implement in the regulatory process that are not
already required under Executive Orders 12866 and 12875." However,
the report by the Senate Committee on Governmental Affairs stated
that the "spirit and intent" of the written statement requirements
involving cost-benefit analysis were "meant to be entirely consistent
with the relevant portions of [Executive Order] 12866." Therefore,
Congress may have expected that the scope of these requirements would
be the same as the scope of the executive order and would cover all
economically significant rules.
--------------------
\8 For a discussion of how these requirements are working, see
Regulatory Flexibility Act: Status of Agencies' Compliance
(GAO/GGD-94-105, Apr. 27, 1994) and Regulatory Flexibility Act:
Agencies' Use of the November 1996 Unified Agenda Did Not Satisfy
Notification Requirements (GAO/GGD/OGC-97-77R, Apr. 22, 1997). In
1996, the Small Business Regulatory Enforcement Fairness Act amended
the Regulatory Flexibility Act and, among other things, permitted
judicial review of agencies' compliance with certain provisions in
the Regulatory Flexibility Act.
\9 For an analysis of these procedures, see The Experience of the
Congressional Budget Office During the First Year of the Unfunded
Mandates Reform Act, Congressional Budget Office, January 1997.
\10 See, for example, S. Rep. No. 104-1, at 17-18 (1995) and S.
Rep. No. 104-2, at 17 (1995).
OMB ISSUED UMRA GUIDANCE AND
REPORTS
---------------------------------------------------------- Letter :2.1
Within OMB, the Office of Information and Regulatory Affairs (OIRA)
has primary responsibility for monitoring agency compliance with
title II of UMRA. On March 31, 1995, the OIRA Administrator issued
guidance for implementing title II. The guidance generally repeated
the requirements in UMRA and did not further define many of the key
words or phrases in the act (e.g., "expenditure" or "significantly or
uniquely affect small governments"). The OIRA guidance noted
parallels between the requirements in (1) sections 202 and 205 of
UMRA and Executive Order 12866 and (2) section 203 and the Regulatory
Flexibility Act.
OMB has issued two reports\11 to Congress as required by section 208
of UMRA, the most recent of which was published in April 1997. In
that report, OMB said that UMRA's "overall philosophy has been
embraced by [f]ederal agencies," as evidenced by the wide range of
consultative activities described in the report. OMB went on to say
the following:
"Each agency has developed processes suited to its needs,
appropriate to its mission, and responsive to its constituents.
While more work remains to be done, real progress has occurred
in both the agency infrastructure under which consultations take
place, and the way that agencies use this structure to analyze
specific rules in ways that reduce costs and increase
flexibility for all levels of government, and for the private
sector, in implementing important national priorities."
--------------------
\11 Agency Compliance With Title II of the Unfunded Mandates Reform
Act of 1995, Report to Congress from the Director of the Office of
Management and Budget, March 22, 1996; Agency Compliance With Title
II of the Unfunded Mandates Reform Act of 1995, Second Annual Report
to Congress from the Director of the Office of Management and Budget,
April 1997.
CURRENT REGULATORY REFORM
INITIATIVES
---------------------------------------------------------- Letter :2.2
Despite the enactment of UMRA and other reform initiatives, concerns
have continued to be raised about the effect of federal regulations
on the public and private sectors. As a result, proposed legislation
to reform the federal rulemaking process was introduced in the 105th
Congress. One such proposal is S. 981, the "Regulatory Improvement
Act of 1997," which was introduced in June 1997.\12 S. 981 addresses
many of the same issues as Executive Order 12866 and UMRA, including
cost-benefit analysis, examination of regulatory alternatives, and
the transparency of the regulatory process. However, the bill goes
beyond the executive order and UMRA's requirements in these areas and
adds some new elements to the rulemaking process. For example, S.
981 would require agencies to conduct cost-benefit analyses for all
"major" rules that have an annual effect on the economy of $100
million--a much broader standard than in UMRA ($100 million in
expenditures by certain regulated entities).\13 S. 981 also would
require agencies to conduct risk assessments and peer reviews for
these major rules, and the bill would apply to many of the
independent regulatory agencies. Neither UMRA nor Executive Order
12866 specifically requires risk assessments or peer reviews, and
neither applies to independent regulatory agencies. S. 981 also
contains judicial review provisions that are not in UMRA or the
executive order.
--------------------
\12 For our comments on certain sections of this bill, see Regulatory
Reform: Comments on S. 981--The Regulatory Improvement Act of 1997
(GAO/T-GGD/RCED-97-250, Sept. 12, 1997).
\13 For example, a rule that involves federal expenditures of more
than $100 million each year would be considered major under S. 981
but would not be covered by UMRA unless it also required expenditures
by state, local, and tribal governments, in the aggregate, or by the
private sector of $100 million or more in any 1 year.
SCOPE AND METHODOLOGY
------------------------------------------------------------ Letter :3
To address our overall objective of determining the effect of title
II of UMRA on agencies' rulemaking actions, we reviewed the
substantive requirements in title II and determined how federal
agencies have implemented those requirements. To determine if there
were rules for which written statements under section 202 of UMRA
should have been on file at CBO but were not, we first obtained a
list of rules from the Regulatory Information Service Center
(RISC)\14 that its database indicated were economically significant
rules published in the Federal Register between March 22, 1995, and
March 22, 1997--the 2 years after the effective date of title II of
UMRA. We focused our review on economically significant rules
because rules that would result in the expenditure of $100 million in
any 1 year by state, local, and tribal governments or the private
sector (one of the factors necessitating an UMRA written statement)
should be a subset of those rules that are considered economically
significant according to Executive Order 12866.
We reviewed each of the economically significant rules promulgated
during this 2-year period for which written statements were not on
file at CBO and noted any explanations presented in the rules
regarding why they were not covered by UMRA's section 202 written
statement requirements. We asked follow-up questions regarding why
no written statement was on file at CBO for these rules at OIRA and
at the four agencies that had promulgated the greatest number of both
economically significant rules and rules for which written statements
were on file--USDA, HHS, DOT, and EPA. Using this and other
information that we collected about the rules, we then determined
whether any of them should have had an UMRA written statement on file
at CBO.
Certain terms in UMRA that dictate whether a written statement should
be prepared are not defined in the act, the conference report, or OMB
guidance. Therefore, we had to develop working definitions of those
terms to determine whether agencies should have prepared written
statements for the rules in our review. We defined an "expenditure"
as a payment made by either the public or private sector, but we did
not include lost income by those groups or payments made by other
entities (e.g., the federal government). We defined an "enforceable
duty" as a responsibility or obligatory task that can be compelled by
the force of government. We defined a "voluntary" federal program as
one in which participants are involved of their own choice.
We had to define other terms to determine whether the written
statements met UMRA requirements and whether the agencies should have
prepared small government plans under section 203 and developed
consultation processes under section 204. For example, we defined
"qualitative" cost-benefit assessments as any nonnumerical measure of
the effects of a rule (e.g., "substantial" costs or "would save many
lives"). If an agency's written statement contained an estimate of
the rule's cost in any forthcoming period, we considered that to be
evidence of "future compliance costs." We used definitions that were
suggested or used by OMB or rulemaking agencies to describe the
possible scope of other terms (e.g., a "significant [f]ederal
intergovernmental mandate" that triggers the consultation process
requirement in sec. 204).
We reviewed all of the written statements that were on file at CBO
(plus one statement that OMB had not forwarded to CBO) and, using a
data collection instrument modeled on our interpretation of the
statute, determined whether the statements met the specific
requirements of section 202 of UMRA and whether the statements
contained information relevant to section 205. We interviewed
officials in the four selected agencies to (1) ensure that all
required elements in their statements had been identified, (2) verify
our coding of those elements, and (3) obtain other information. To
determine what consultation processes the selected agencies
established under section 204, we reviewed descriptions of those
processes in OMB's annual reports on UMRA, interviewed officials in
the four selected agencies, and obtained and reviewed copies of any
relevant documents in those agencies.
To determine whether the agencies had developed small government
plans required under section 203, we focused on all final rules that
had been promulgated during the 2-year period included in our review
and that appeared on the list of rules that RISC identified as
economically significant or that we identified as economically
significant.\15 We reviewed the Unified Agenda of Federal Regulatory
and Deregulatory Actions\16 to determine whether the agencies had
previously identified the rules as having an effect on small
governments. We also obtained comments from officials in the Small
Business Administration's (SBA) Office of Advocacy on whether they
believed that any of the final rules would have an effect on small
governments.\17 Finally, we asked officials in each of the four
selected agencies whether they had developed small government plans.
To determine the status of the pilot programs established by OMB
under section 207, we interviewed appropriate officials in the two
agencies with such pilots and reviewed any available documentation
for those pilots. We also conducted a legal review to determine
whether any judicial decisions had been issued regarding agencies'
compliance with the written statement and small government plan
requirements of UMRA. However, we did not identify cases that might
have been filed with the courts regarding UMRA compliance but that
had not yet been decided. We did not validate all of the databases
we used in this review.
The methodology we used in this review was not designed to identify
all of the possible effects that UMRA may have had on agencies'
rulemaking actions. For example, we did not attempt to determine
whether UMRA prevented agencies from proposing rules with significant
mandates or caused them to eliminate certain burdensome effects that
otherwise would have been contained in the rules that were proposed.
Although we attempted to determine whether agencies' written
statements satisfied the basic requirements of sections 202 and 205
of UMRA, we did not assess the quality of the agencies' economic
analyses prepared to satisfy these provisions.\18 For example,
although we determined whether the written statements contained
qualitative and quantitative assessments of the anticipated costs and
benefits of a federal mandate, we did not attempt to determine
whether an agency's economic analysis used sound economic assumptions
or methodologies. Neither did we determine whether all relevant
quantitative and qualitative costs and benefits had been identified
or whether the alternatives had been adequately considered. Any
comments we received from officials in the four selected agencies are
not generalizable to other federal agencies.
We conducted our work between February 1997 and November 1997 at OMB,
USDA, HHS, DOT, and EPA headquarters in Washington, D.C., in
accordance with generally accepted government auditing standards. We
provided a draft of this report for review and comment to the
Director of OMB; the Secretaries of Agriculture, HHS, and
Transportation; and the Administrator of EPA. Their comments are
reflected in the agency comments section of this report.
--------------------
\14 RISC is part of the General Services Administration, but works
closely with OMB to provide the president, Congress, and the public
with information on federal regulatory policies. Its major project
has been to coordinate the development and publication of the Unified
Agenda of Federal Regulatory and Deregulatory Actions, which is
published twice a year.
\15 We focused on only final rules in this part of the review because
section 203 of UMRA states that agencies must develop small
government plans before "establishing" certain regulatory
requirements. Although some of the 73 final rules we reviewed were
not economically significant, the requirements of section 203 of UMRA
can apply to rules that have a significant or unique effect on small
governments but are not economically significant or mandates.
\16 The Unified Agenda is issued twice a year by RISC and is a
compendium of executive and independent agencies' regulatory
activities that are being developed, planned for the future, or
completed.
\17 We asked this office to review the rules because section 612 of
the Regulatory Flexibility Act requires SBA's Chief Counsel for
Advocacy to monitor agency compliance with the UMRA requirements.
One of the small entities that UMRA was designed to protect is small
governments.
\18 In a forthcoming report, we will discuss in greater detail the
economic analyses that agencies used to satisfy the requirements.
WRITTEN STATEMENTS WERE NOT
REQUIRED FOR MOST ECONOMICALLY
SIGNIFICANT RULES
------------------------------------------------------------ Letter :4
Section 202 of UMRA says that, unless otherwise prohibited by law,
agencies must prepare a written statement for each applicable rule
before promulgating any general notice of proposed rulemaking or any
final rule for which a notice of proposed rulemaking was published.
At our request, RISC provided us with a list of 132 rules that its
database indicated were economically significant under Executive
Order 12866 and that had been published in the Federal Register
between March 22, 1995, and March 22, 1997. However, we determined
that
-- 22 of the rules on the RISC list were not economically
significant and, therefore, were excluded from our review;
-- 3 of the rules on the RISC list had been "promulgated" before
UMRA's March 22, 1995, effective date and, therefore, were
excluded from our review;\19 and
-- 3 economically significant rules had been promulgated during
this period that were not in the RISC database and, therefore,
were included in our review.
Therefore, we focused on a total of 110 economically significant
rules in this portion of our review. Section 202 written statements
were on file at CBO for 29 of these 110 rules.\20 We discovered that
one of the three additional economically significant rules described
what the issuing agency had done to comply with UMRA, but OMB had
mistakenly not forwarded a copy of the written statement for the rule
to CBO.\21 We included this rule with the 29 for which written
statements were on file at CBO. Subtracting these 30 rules from the
110 economically significant rules promulgated during this 2-year
period yielded a total of 80 rules that were economically significant
but for which no written statement had been prepared. (See app. I
for a list of these 80 economically significant rules for which no
written statements were on file at CBO. See app. II for a list of
the 30 rules for which written statements were on file at CBO.)
Of the 80 economically significant rules that were promulgated
between March 22, 1995, and March 22, 1997, for which no written
statement was on file at CBO, the issuing agencies frequently did not
mention UMRA in the rules. Those agencies that did mention UMRA in
their rules frequently said that the rules did not contain a federal
mandate and/or did not result in $100 million in expenditures by
state, local, and tribal governments or the private sector and,
therefore, were not covered by sections 202 or 205 of the act.
We compared the substance of these 80 economically significant rules
to the requirements in UMRA and concluded that 2 of the rules were
required to have an UMRA written statement on file at CBO. No
written statements appeared to be required for 78 of the rules for a
variety of reasons as follows.\22
-- One DOT rule established the light truck fuel economy standard
for 1998 at 20.7 miles per gallon--the level at which Congress
had required DOT to set the standard in the Department of
Transportation and Related Agencies Appropriation Act of 1996.
Because this rule incorporated requirements that were
specifically set forth in law, section 201 of UMRA allowed DOT
not to assess the rule's effects on state, local, and tribal
governments or the private sector.
-- Eighteen of the rules were not notices of proposed rulemaking or
final rules for which such notices had been published. Section
202 of UMRA states that a written statement must be prepared
before promulgating any general notice of proposed rulemaking
and before promulgating any final rule for which a general
notice of proposed rulemaking was published. The rules without
proposed rules included notices, advance notices of proposed
rulemaking, and interim final rulemakings. For example, HHS
issued six notices for the Medicaid and Medicare programs, each
of which had associated costs of more than $100 million, but
none of which had associated proposed rules. USDA issued a
final rule involving the implementation of several farm programs
with associated costs that the agency estimated at $36.8
billion. However, there was no notice of proposed rulemaking
for this rule.
-- Forty-seven of the rules had notices of proposed rulemaking but
were not "mandates" as defined in UMRA. Section 202 of UMRA
states that the written statement requirement applies to rules
that include a federal mandate, which is defined in title I of
the act as an "enforceable duty" that is not "a condition of
[f]ederal assistance" or "a duty arising from participation in a
voluntary [f]ederal program." Three of the 47 rules did not
appear to impose an enforceable duty. For example, one USDA
rule allowed the importation of meat from Argentina and Mexico.
Although USDA estimated that the rule could cause American
livestock producers to lose as much as $190 million in income
each year, the rule did not impose an enforceable duty on those
producers.\23 Forty-four of the 47 rules appeared to impose an
enforceable duty, but that duty was either as a condition of
federal assistance (33 rules) or arose from participation in a
voluntary program (11 rules). For example, although USDA's 1996
upland cotton program regulation appeared to impose the
requisite enforceable duty (that farmers not plant cotton), the
duty arose only as a condition of federal assistance. USDA
estimated that this regulation would cost the federal government
between $0.5 and $1.5 billion in 1996.\24
-- Twelve of the rules met all of the aforementioned standards but
were unlikely to result in expenditures of more than $100
million in any 1 year. For example, one of the rules issued by
the Food and Drug Administration within HHS established new food
labeling requirements. The rule was considered economically
significant because the agency had estimated its benefits at
more than $100 million per year. However, the agency estimated
that the rule would cost the private sector only $4 million in
the first year, and that costs would decline in subsequent
years.
Figure 1 summarizes this information, showing how many of the 110
economically significant rules that were promulgated during this
2-year period did and did not have written statements on file at CBO,
and why many rules did not appear to require such statements.
Figure 1: Most Economically
Significant Rules Did Not
Appear to Require an UMRA
Written Statement
(See figure in printed
edition.)
Note: One economically significant rule described what the agency
had done to comply with UMRA, but OMB had mistakenly not forwarded
the rule to CBO. We included this rule with the 29 rules for which
written statements were on file at CBO.
Source: GAO analysis.
Table 1 shows the number of economically significant rules for which
written statements were and were not on file at CBO and the total
number of such rules, by department or agency.
Table 1
Economically Significant Rules and
Written Statements, by Department or
Agency
Economically significant rules
----------------------------------
No written Written
statement statement
on file at on file at
Department or agency CBO CBO Total
---------------------------------- ---------- ---------- ----------
Department of Agriculture 25 1 26
Department of Commerce 3 0 3
Department of Energy 0 1 1
Department of Health and Human 16 5 21
Services
Department of Housing and Urban 4 0 4
Development
Department of the Interior 6 0 6
Department of Justice 4 0 4
Department of Labor 4 1 5
Department of Transportation 2 4 6
Environmental Protection Agency 11 18 29
Small Business Administration 2 0 2
Social Security Administration 3 0 3
======================================================================
Total 80 30 110
----------------------------------------------------------------------
Sources: RISC and GAO.
The two rules that we concluded should have had UMRA written
statements on file at CBO but did not were EPA's proposed national
ambient air quality standards for ozone and particulate matter.\25 As
we said in our August 1997 report on these rules, we disagree with
EPA's interpretation of UMRA's requirements regarding the written
statements in one respect.\26 EPA contended that a written statement
was not required for these rules under section 202 of UMRA, which
states that a statement need not be prepared if "otherwise prohibited
by law." However, although EPA was not required to include cost
estimates described in sections 202(a)(2), (3), and (4) of UMRA
because of Clean Air Act prohibitions, it was still required to
identify the provision of federal law under which rules were being
promulgated and to describe its outreach efforts with state, local,
and tribal governments under sections 202(a)(1) and (5).
Nevertheless, EPA appears to have satisfied the substantive UMRA
written statement requirements.
--------------------
\19 Section 202 of UMRA says that agencies must prepare a written
statement before promulgating any proposed or final rule for which a
notice of proposed rulemaking was published. The statute does not
define the word "promulgating," but several court decisions unrelated
to UMRA have stated that a rule is promulgated when it is signed by
the agency head and publicly disseminated. (See American Petroleum
Institute v. Costle, 609 F.2d 20 (D.C. Cir. 1979) and Industrial
Union Department v. Bingham, 570 F.2d 965 (D.C. Cir. 1977).)
Therefore, a rule does not always have to be published in the Federal
Register for it to be promulgated.
\20 One of these 29 rules had no written statement on file at the
start of our review, but a statement was added after we queried OMB
about its absence.
\21 An OMB official said that a copy of the written statement for
this rule should have been submitted to CBO, and that OMB would do
so.
\22 Some of the rules did not appear to require a written statement
for more than one reason. Also, the number of rules that fell into
each of the categories was partially a function of the order of
presentation. For example, if the "$100 million in expenditures"
criterion was presented first, it would have accounted for more of
the rules and diminished the number of rules in the other categories.
The order we used generally reflected the order that the criteria
were presented in UMRA.
\23 This rule also did not appear to require "expenditures" on the
part of American livestock producers. Although "expenditures" is not
defined in UMRA, we did not consider lost income to be an
"expenditure."
\24 For related information, see Cotton Program: Costly and Complex
Government Program Needs to Be Reassessed (GAO/RCED-95-107, June 20,
1995) and Commodity Programs: Impact of Support Provisions on
Selected Commodity Prices (GAO/RCED-97-45, Feb. 21, 1997).
\25 61 Fed. Reg. 65716 and 65638, December 13, 1996.
\26 For a full discussion of this issue, see Environmental Protection
Agency: National Ambient Air Quality Standards for Particulate
Matter; Final Rule and National Ambient Air Quality Standards for
Ozone; Final Rule (GAO/OGC-97-56, Aug. 4, 1997).
UMRA WRITTEN STATEMENTS
GENERALLY MET THE ACT'S
REQUIREMENTS
------------------------------------------------------------ Letter :5
Subsection 202(a) of UMRA states that the written statements that
agencies are required to prepare for certain rules must (1) identify
the provision of federal law under which the rule is being
promulgated; (2) contain a qualitative and quantitative assessment of
the anticipated costs and benefits of the mandate; and (3) for
certain rules, describe the extent of the agency's prior consultation
with representatives of affected state, local, and tribal
governments. UMRA also says that the written statements should
contain estimates, if the agency determines they are "reasonably
feasible," of future compliance costs; effects on the national
economy; and any disproportionate budgetary effects on particular
regions, governments, communities, or segments of the private sector.
The 30 written statements that the agencies provided to OMB during
the 2 years following the enactment of UMRA were usually contained in
the preambles to the rules themselves and any associated economic
analyses. Only 2 of the 30 rules had a separate written statement
prepared specifically to comply with UMRA. About half of the
remaining 28 rules had specific sections in the preambles describing
the actions that the agencies had taken under the section 202
requirements. The UMRA sections in the preambles were typically less
than a page in length. In the other half of the 28 rules, there were
no specific sections dealing with UMRA compliance. However, the act
does not require agencies to prepare a separate UMRA written
statement or a separate UMRA section. Subsection 202(c) of UMRA
states that an agency "may prepare any statement required under
subsection (a) in conjunction with or as part of any other statement
or analysis, provided that the statement or analysis satisfies the
provisions of subsection (a)."
Our analysis indicated that the written statements generally met most
of the requirements of section 202 of UMRA. All of the 30 statements
identified the provision of federal law under which the rules were
being promulgated.\27 All but one of the statements contained
quantitative cost-benefit information, and a few others did not
contain information on qualitative costs. About half of the
statements contained descriptions of the agencies' prior
consultations with state, local, and tribal government
representatives. However, there was no indication in the remaining
statements that the rules would affect those governments to the
degree that a description of their consultations was required.
Subsection 202(a)(5) of UMRA states that the written statements must
describe the agency's intergovernmental consultations "under section
204." As will be discussed later, section 204 may only apply to a few
of the 110 economically significant rules promulgated during the 2
years after UMRA was enacted.
Most of the written statements did not contain estimates of
disproportionate budgetary effects of the mandates on particular
regions or governments, or estimates of the effect of the mandates on
the national economy. However, in most of those cases, the rules
appeared unlikely to have such effects. Furthermore, even if the
rules had budgetary or economic effects, UMRA allows agencies to
exclude those items from the written statements if they determine
that accurate estimates of those effects are not reasonably feasible.
That determination is not required to be made in the written
statement or even in writing.
--------------------
\27 Two of the written statements on file at CBO did not identify the
provision of federal law. An OMB official said that the rules that
the agencies submitted to OMB contained this information, but OMB had
not forwarded the entire rule to CBO.
ALTERNATIVES AND SELECTION
CRITERIA WERE NOT REQUIRED
IN THE WRITTEN STATEMENT BUT
WERE USUALLY PRESENT
---------------------------------------------------------- Letter :5.1
Section 205 of UMRA states that before promulgating a rule for which
a written statement is required, agencies must "identify" and
"consider" a reasonable number of alternatives and "select" the one
that is least costly, most cost-effective, or least burdensome and
that achieves the rule's objective. However, UMRA does not require
agencies to document those actions in the written statements that
they are required to prepare under section 202(a), or even to
identify, consider, or select the alternatives in writing.
Nevertheless, all but 1 of the 30 written statements that were
submitted during the first 2 years of UMRA's implementation included
some discussion of the regulatory alternatives that the agencies
considered and the alternatives they selected. In most cases, the
number of regulatory alternatives that the agencies considered was
clear, but in other cases the number of alternatives was more
difficult to tally. For example, one of the rules contained five
basic options, each of which had four suboptions. Therefore, it was
unclear whether the agency considered 5 alternatives or 20
alternatives for this rule.
Most commonly, the agencies considered between three and seven
alternatives for each of the rules, with the types of options
considered varying widely. For example, the Department of Energy
(DOE) identified six major policy alternatives in its proposed rule
on energy conservation standards for refrigerators and freezers,
including no new regulatory action, informational action,
prescriptive standards, financial incentives, voluntary targets, and
the proposed performance standards. DOE said it selected the
proposed standards as the basis of its regulatory action because none
of the other alternatives saved as much energy and all of the other
options would have required legislation. Other agencies said that
they selected the regulatory alternative being proposed because it
was the least costly and/or least burdensome option. However, in its
rule on Air Pollution Emission Standards for New Nonroad Spark
Ignition Marine Engines, EPA said that it selected the least costly,
most cost-effective, or least burdensome option, but the rule did not
indicate which factor prompted the selection.
REQUIREMENTS IN SECTIONS 202
AND 205 OF UMRA ARE SIMILAR
TO PREVIOUS STATUTORY AND
EXECUTIVE ORDER REQUIREMENTS
---------------------------------------------------------- Letter :5.2
Several of the requirements in sections 202 and 205 of UMRA are
similar to the requirements in previous statutes and executive
orders. For example, for more than 50 years, the APA has required
that notices of proposed rulemaking contain "reference to the legal
authority under which the rule is proposed." Executive Order 12866,
which had been in effect for more than 18 months by the time UMRA was
enacted, requires agencies to conduct cost-benefit analyses of
economically significant proposed and final rules, and to include in
those analyses "an assessment . . . of potentially effective and
reasonably feasible alternatives to the planned regulation . . .
and an explanation why the planned regulatory action is preferable to
the identified potential alternatives."\28 Cost-benefit analyses
under the executive order are to include some of the same issues that
UMRA requires cost-benefit analyses to cover, including effects on
the economy, productivity, competitiveness, and employment. OIRA's
guidance on the implementation of title II of UMRA notes these areas
of overlap between the executive order and the statute, and states
that OIRA would review agencies' written statements "during our
reviews conducted under E.O. 12866."
--------------------
\28 Executive Order 12291, which was in effect from 1981 to 1993,
also required agencies to describe "alternative approaches that could
substantially achieve the same regulatory goal at lower cost . . .
."
UMRA DID NOT SUBSTANTIVELY
CHANGE AGENCIES'
INTERGOVERNMENTAL CONSULTATION
PROCESSES
------------------------------------------------------------ Letter :6
Section 204 of UMRA requires agencies, to the extent permitted in
law, to develop an effective process to permit elected officers of
state, local, and tribal governments (or their designees) to provide
meaningful and timely input in the development of regulatory
proposals containing "significant [f]ederal intergovernmental
mandates." The UMRA conference report stated that this requirement
was included because improved communication with these nonfederal
governments is "an important part of efforts to improve the [f]ederal
regulatory process . . . ."
Although the term "federal intergovernmental mandate" is defined in
title I of UMRA,\29 the term "significant federal intergovernmental
mandate" is not defined in either the statute or the conference
report. OIRA officials told us that they also have not defined the
term, but they said a "significant" intergovernmental mandate would
at least include any mandate that may result in expenditures by
state, local, and tribal governments, in the aggregate, of $100
million or more in any 1 year. EPA's Office of Policy, Planning and
Evaluation used exactly those words to define a significant mandate
under section 204 of UMRA in draft guidance on implementing the act,
which it issued to its regulatory steering committee and regional
regulatory contacts in August 1995.\30
Only 2 of the 110 economically significant rules that were
promulgated during the first 2 years of UMRA were described as
significant federal intergovernmental mandates in OIRA's reports on
agencies' compliance with title II of the act. Both of the rules
were issued by EPA in UMRA's first year of implementation.\31 Our
review of the other 108 rules promulgated during this period
indicated that EPA's December 1996 proposed ozone and particulate
matter rules may have also triggered the consultation process
requirements in section 204. EPA's cost-benefit analyses for these
rules indicate that state and local governments may incur annual
costs of more than $100 million. However, UMRA appears to require
that an agency develop only a single consultation process for all its
significant federal intergovernmental mandates. Therefore, the
consultation process that EPA developed for the two rules identified
as significant federal intergovernmental mandates in OIRA's reports
would have met the UMRA requirement for the ozone and particulate
matter rules as well.
--------------------
\29 The term "[f]ederal intergovernmental mandate" is defined as a
provision that would (1) impose an enforceable duty on state, local,
or tribal governments other than as a condition of federal assistance
or arising from a voluntary federal program or (2) reduce or
eliminate the amount of authorized appropriations for federal
financial assistance or the control of borders by the federal
government.
\30 EPA officials said that, as of November 1997, this draft UMRA
guidance had not been made final.
\31 One of the rules sets performance standards for new municipal
waste combustors, and the other rule sets performance standards for
new municipal solid waste landfills and emission guidelines for
existing municipal solid waste landfills to implement section 111 of
the Clean Air Act. These rules were 2 of the 30 for which written
statements were prepared. The other 28 rules were private sector
mandates.
UMRA CONSULTATION
REQUIREMENTS ARE SIMILAR TO
PREVIOUS STATUTES AND
EXECUTIVE ORDERS
---------------------------------------------------------- Letter :6.1
The requirement in section 204 of UMRA is similar to consultation
requirements that were in place at the time the act was put into
effect. For example, for more than 50 years, the APA has required
agencies to "give interested persons an opportunity to participate in
the rulemaking through submission of written data, views, or
arguments . . . ." Executive Order 12866 states that, whenever
feasible, agencies must "seek views of appropriate [s]tate, local,
and tribal officials before imposing regulatory requirements that
might significantly or uniquely affect those governmental entities."
Finally, in language that closely parallels UMRA, Executive Order
12875 requires each agency to "develop an effective process to permit
elected officials of state, local, and tribal governments to provide
meaningful and timely input in the development of regulatory
proposals containing significant unfunded mandates."
SELECTED AGENCIES'
CONSULTATION PROCESSES WERE
RELATIVELY UNCHANGED BY UMRA
---------------------------------------------------------- Letter :6.2
None of the four agencies that we contacted said they had changed
their intergovernmental consultation process as a result of the
passage of UMRA. For example, EPA's August 1995 draft UMRA guidance
says that agency staff should continue to gather input from state,
local, and tribal governments using the procedures EPA developed to
implement Executive Order 12875, which had been issued nearly 2 years
earlier. EPA's guidance under that executive order was included as
an appendix to the UMRA guidance and was updated to include
references to UMRA. The guidance states that EPA's general policy is
that the amount and type of intergovernmental consultation for a
given action should be commensurate with the extent of the rule's
costs, complexity, and controversy. Officials in USDA, HHS, and DOT
said that, if their agencies promulgated a significant federal
intergovernmental mandate, they would use essentially the same
consultation processes to satisfy UMRA that they use to comply with
the APA and Executive Orders 12866 and 12875.
NONE OF THE RULES TRIGGERED THE
UMRA SMALL GOVERNMENT PLAN
REQUIREMENT
------------------------------------------------------------ Letter :7
Section 203 of UMRA states that agencies must have developed a plan
for notifying, educating, advising, and obtaining input from small
governments before "establishing" any regulatory requirements that
might "significantly or uniquely" affect small governments. Although
not defined in UMRA, we interpreted "establishing" to mean the
promulgation of final rules. Of the 132 rules that either RISC or we
identified as economically significant rules that had been
promulgated during the 2 years following the enactment of UMRA, 73
were final rules for which small government plans would have been
required if the rules had a significant or unique effect on small
governments.
We reviewed all of these 73 final rules, and none indicated that a
small government plan had been established. Fifty of these rules
were in the four agencies that we focused on in our review--USDA,
HHS, DOT, and EPA. Officials in these agencies said that none of the
50 rules would have a significant or unique effect on small
governments, and, therefore, they had not developed small government
plans for any of the rules.\32 However, EPA officials said that they
had developed a generic "interim small government agency plan" that
would be tailored to any rule that the agency determines will have a
significant or unique effect on small governments.
We provided officials in SBA's Office of Advocacy with a list of
these 73 final rules. They concluded that one EPA rule on air
emissions from municipal solid waste landfills could have had a
significant or unique effect on small governments, but they could not
be sure because of incomplete information.\33 We also reviewed the
Unified Agenda entries for the 73 rules to determine whether the
issuing agencies had previously indicated that the rules would have a
significant economic impact on a substantial number of small
governments. If so, the rules might have also significantly or
uniquely affected those small governments. The Unified Agenda
indicated that 6 of the 73 final rules would have a significant
effect on small governments. EPA promulgated three of these six
final rules. However, EPA officials said that their assessments in
the Unified Agenda were made early in the rulemaking process, and
that the rules may have changed during that process to have less of
an effect on small governments. The officials also said that they
indicate in the agenda whether their rules will have any effect on
small governments, not just a significant or unique effect.\34 The
other three rules were issued by USDA, HHS, and the Department of
Labor (DOL). In the final rules, the three agencies said that the
rules would not significantly or uniquely affect small governments.
--------------------
\32 In its November 27, 1996, rule on financial assurance mechanisms,
EPA said the rule was intended to have a significant or unique effect
on small governments. However, EPA also said that the rule was not
subject to section 203 of UMRA because it provided regulatory
flexibility for local governments and did not impose additional
regulatory requirements.
\33 SBA officials said that most of the remaining 72 final rules
would either not have a significant or unique effect on small
governments or that such an effect was unlikely.
\34 The introduction to the Unified Agenda states that the "small
entities affected" data element indicates whether a rule is expected
to have a "significant economic impact on a substantial number of
`small entities.'" However, in the preamble to its section in the
Unified Agenda, EPA said "we have identified those rules that will,
if promulgated, impose any requirements on any small entities by
indicating in the `Small Entities Affected' section the category of
small entities that will be subject to the rule requirements."
UMRA SMALL GOVERNMENT PLAN
REQUIREMENTS ARE SIMILAR TO
OTHER STATUTORY REQUIREMENTS
---------------------------------------------------------- Letter :7.1
In its guidance on implementing title II of UMRA, OIRA said that the
small government plan requirement in section 203 of the act "builds
upon the policy objectives of the Regulatory Flexibility Act." The
Regulatory Flexibility Act requires federal agencies to assess the
effects of their proposed rules on small entities, including small
governments. If a proposed or final rule has a "significant economic
impact on a substantial number of small entities," the issuing agency
must prepare and make available to the public a regulatory
flexibility analysis. This analysis is to describe, among other
things, the need for the rule, its objectives, reporting
requirements, alternatives that would minimize the impact of the rule
on small entities, and a summary of the issues raised by public
comments.\35
In 1996, Congress passed the Small Business Regulatory Enforcement
Fairness Act, which amended the Regulatory Flexibility Act in several
ways. One such amendment is a requirement that EPA and the
Occupational Safety and Health Administration convene a panel
soliciting the views of affected small entities (including small
governments) before issuing any rule that has a significant impact on
a substantial number of small entities. The agencies must report on
the comments of the small entity representatives within 60 days after
the panel is convened.
--------------------
\35 For a discussion of how this act has been implemented, see
Regulatory Flexibility Act: Status of Agencies' Compliance
(GAO/GGD-94-105, Apr. 27, 1994).
PILOT PROGRAMS WERE NOT STARTED
BECAUSE OF UMRA
------------------------------------------------------------ Letter :8
Section 207 of UMRA requires the Director of OMB, in consultation
with federal agencies, to establish pilot programs in at least two
agencies "to test innovative, and more flexible regulatory
approaches" that reduce reporting and compliance burdens on small
governments and meet overall statutory goals and objectives. OMB's
April 1997 annual report on agencies' compliance with title II
indicated that OMB had designated three pilot projects in two
agencies--one at USDA and two at EPA.
The USDA pilot involved consolidation of its regulations on grants
and loans for water and waste disposal from the former Rural
Electrification Administration and the former Farmers Home
Administration into the Rural Utilities Service. This consolidation
was initiated because of a reorganization of responsibilities within
USDA. Legislation implementing the new organizational structure was
passed and signed into law in October 1994.\36 In a final rule
related to the pilot, USDA said that by combining the water and waste
loan and grant regulations into one regulation, "[u]necessary and
burdensome requirements for entities seeking . . . financial
assistance under the program are eliminated."\37
One of the two pilots at EPA is an initiative by EPA's Office of
Enforcement and Compliance Assurance to develop a policy on flexible
state enforcement responses to small community violations. Under the
final policy, issued in November 1995, EPA will defer to a state's
decision to provide a small community compliance assistance and waive
part or all of the noncompliance penalty if the community is working
diligently and in good faith to achieve compliance. An EPA official
said that the project was started because representatives of Oregon
and Idaho came to EPA in 1994 and requested that the agency develop a
program to work with small local governments to identify
environmental compliance problems and develop new methods of
addressing them. At the time of our review, only Oregon and Nebraska
had active small community environmental compliance assistance
programs; however, according to the EPA official, five additional
states had applied to participate.
The other EPA pilot involves a number of activities in which the
agency worked with the Environmental Council of the States (ECOS) to
facilitate its interactions with state and local governments.
According to OMB's 1997 annual report on title II compliance, one of
the key priorities of the effort was to promote flexible approaches
to regulatory compliance for small governments. On June 17, 1996,
EPA's Small Town Task Force presented to the EPA Administrator its
final report containing more than 39 recommendations developed during
the previous 2 years. On March 17, 1997, the ECOS Small Town Task
Force submitted a work plan to EPA to implement the recommendations.
An EPA official said that some of the tasks in the work plan had been
completed at the time of our review and that others were ongoing.
In its March 1995 guidance on implementing title II of UMRA, OMB
noted that agencies may already be considering efforts similar to the
pilots as part of the administration's NPR initiative, which had
started 2 years before UMRA was enacted. In fact, the three pilots
appear related or similar to that initiative in some respects. For
example, USDA noted in its final rule related to the pilot that it
was part of the NPR effort. The reorganization that USDA officials
said prompted their pilot was recommended by the NPR in its September
1993 report.\38 The EPA pilots appear related to an NPR
recommendation that EPA improve environmental protection through
increased flexibility for local governments. In our December 1994
report assessing the implementation of the recommendation, we noted
that EPA had already formed its Small Town Task Force Advisory
Committee to advise the EPA Administrator and recommend ways to
increase flexibility for local governments.\39 We also noted that EPA
had established pilot projects in three states, one of which involved
reviewing a community's environmental risks and developing priorities
to target the most pressing environmental needs. However, the
impetus for EPA's pilot on small community violations appears to have
been actions by two states' representatives, not NPR or UMRA.
Although OMB appears to have satisfied UMRA's requirement to
establish pilot programs in at least two agencies, two of the three
initiatives previously mentioned began before the enactment of UMRA.
Furthermore, officials in both USDA and EPA indicated that the three
initiatives were not started because of the passage of UMRA.
--------------------
\36 Federal Crop Insurance Reform and Department of Agriculture
Reorganization Act of 1994, Public Law No. 103-354, 108 Stat. 3178
(1994).
\37 62 Fed. Reg. 33462, June 19, 1997.
\38 From Red Tape to Results: Creating a Government That Works
Better and Costs Less, report of the National Performance Review,
Vice President Al Gore, September 7, 1993.
\39 Management Reform: Implementation of the National Performance
Review's Recommendations (GAO/OCG-95-1, Dec. 5, 1994).
ONE FEDERAL COURT DECISION
INVOLVED AGENCIES' COMPLIANCE
WITH THE WRITTEN STATEMENT
REQUIREMENTS
------------------------------------------------------------ Letter :9
Title IV of UMRA states that agencies' compliance with the
requirements to prepare the written statement under section 202 and
the small government plan under section 203 are subject to limited
judicial review. If an agency fails to prepare the written statement
or the plan, a court may compel the agency to do so. However, the
absence or inadequacy of a statement or a plan cannot be used as the
basis for invalidating the rule.
We identified one court case that had been decided in which the
plaintiff alleged violations of UMRA as well as other laws by DOL in
its rulemaking process.\40 Regarding UMRA, the plaintiffs alleged
that because DOL issued its final rule of December 20, 1996, without
preparing any of the regulatory analyses and impact statements
required by section 202, the court should declare the rule invalid.
In accordance with section 401(a)(3) of UMRA, the court refused to
grant the plaintiff's requested relief and stated that the inadequacy
or failure to prepare the written statement could not be used as a
basis for staying, enjoining, invalidating, or otherwise affecting
the agency rule.
--------------------
\40 Associated Builders & Contractors, Inc., et al v. Alexis Herman,
Secretary of Labor, and John Fraser, Acting Administrator of the Wage
and Hour Division, U.S. Department of Labor, No. 96-1490 (SS), 1997
U.S. Dist. LEXIS 11991, at *1 (D.D.C. 1997).
CONCLUSIONS
----------------------------------------------------------- Letter :10
Our review of federal agencies' implementation of title II of UMRA
indicates that this title of the act has had little direct effect on
agencies' rulemaking actions during the first 2 years of its
implementation. We reached this conclusion for three reasons.
First, many of the UMRA requirements did not appear to apply to most
economically significant rules promulgated during this period. For
example, we concluded that 78 of the 80 economically significant
rules for which section 202 written statements were not on file at
CBO did not require such a statement under the terms of the statute.
Economically significant rules that may cost individuals or
businesses more than $100 million per year are not covered by UMRA's
requirement to develop a written statement if they (1) do not have an
associated notice of proposed rulemaking; (2) do not impose an
enforceable duty; (3) impose such a duty but only as a condition of
federal assistance or as part of a voluntary program; or (4) do not
involve an expenditure of $100 million in any 1 year by the private
sector or by state, local, and tribal governments. Because section
205 of UMRA only applies to those rules for which a written statement
is required, its reach is equally limited. The remaining two rules,
which we believe should have had written statements, were EPA rules
that complied with the substance of the UMRA written statement
requirements.
Sections 203 and 204 of UMRA also appeared to have had little impact
on agencies' rulemaking actions. Agencies did not prepare small
government plans for any of the 73 final rules that we examined.
Officials in the 4 agencies that we contacted--USDA, HHS, DOT, and
EPA--said that none of the 50 final rules within this group that they
promulgated had a significant or unique effect on small governments
requiring a section 203 small government plan. Officials in SBA's
Office of Advocacy generally concurred with the agencies'
conclusions. OIRA and federal agencies said that only 2 of the 110
rules promulgated during the first 2 years of UMRA were significant
federal intergovernmental mandates that required the development of a
consultation process under section 204. Both of the rules were
issued by EPA. Although two other EPA rules might have been
significant intergovernmental mandates, the consultation process that
the agency used for the other rules would satisfy the section 204
requirement for any mandates the agency developed.
The second reason UMRA does not appear to have had much effect on the
agencies' rulemaking actions is that it does not require agencies to
take the actions required in the statute if the agencies determine
that the actions are duplicative of other actions or that accurate
estimates of the effect of the rule are not feasible. For example,
section 202(c) of UMRA says that the written statement required in
section 202(a) may be prepared "in conjunction with or as part of any
other statement or analysis" as long as that statement or analysis
contains the required information. Because the agencies' rules
commonly contain the information that section 202(a) requires in the
written statements, the agencies only rarely prepared a separate UMRA
written statement. Subsection 202(a)(3) of UMRA says agencies'
written statements must contain estimates of future compliance costs
and any disproportionate budgetary effects "if and to the extent that
the agency determines that accurate estimates are reasonably
feasible." Subsection 202(a)(4) says that the written statements must
contain estimates of the effect on the national economy "if and to
the extent that the agency in its sole discretion determines that
accurate estimates are reasonably feasible and that such effect is
relevant and material." Therefore, an agency can omit these estimates
from any written statement if it considers them inaccurate,
unfeasible, or, in the case of subsection 202(a)(4), irrelevant or
immaterial.
The third reason UMRA does not appear to have had much effect on the
agencies' rulemaking actions is that the act requires agencies to
take certain actions that are either identical or similar to actions
that they were already required to take or had completed, or that
were under way. Because the scope of the previous requirements was
usually much broader than the UMRA requirements, the following UMRA
requirements did not appear to significantly alter the agencies'
rulemaking actions:
-- Section 202(a) of UMRA requires agencies to prepare a written
statement containing an assessment of the costs and benefits of
proposed federal mandates. Section 206 of UMRA says that the
Director of OMB must collect the written statements from the
agencies. However, Executive Order 12866, which was issued more
than a year before UMRA, already required agencies to provide
OIRA with assessments of the costs and benefits of all
economically significant proposed rules, including some rules
that were not mandates.
-- Section 205 of UMRA requires agencies to identify a number of
regulatory alternatives for proposed mandates and to select the
least costly, most cost-effective, or least burdensome
alternative that achieves the objectives of the rules. However,
Executive Order 12866 already required agencies to identify
regulatory alternatives and explain why the planned regulatory
action is preferable to the other alternatives for all
economically significant rules, including some rules that were
not mandates. The executive order also says that agencies'
regulations should be cost-effective and impose the least burden
on society.
-- Section 204 of UMRA requires agencies to develop a process to
consult with representatives of state, local, and tribal
governments. However, the basic elements of the UMRA
consultation process can be traced to the notice and comment
requirements in the APA, which was enacted nearly 50 years
before UMRA. More specifically, Executive Order 12866 requires
agencies to seek the views of state, local, and tribal officials
before imposing regulatory requirements that might significantly
or uniquely affect them. Executive Order 12875, which was also
issued more than a year before UMRA, requires agencies to
"develop an effective process to permit elected officials of
state, local, and tribal governments to provide meaningful and
timely input in the development of regulatory proposals
containing significant unfunded mandates"--language that is
almost identical to section 204 of UMRA.
-- Officials in the agencies where the section 207 pilot programs
were established said that the pilots were not initiated to
satisfy UMRA requirements. Two of the pilots began before the
enactment of UMRA, and all three pilots were similar or related
to initiatives already under way as part of the administration's
NPR management reform initiative.
The committee reports for the Senate bill that led to the adoption of
UMRA indicate that Congress was aware that the bill duplicated
existing requirements in many respects. For example, the report by
the Senate Committee on the Budget stated that, except for the
requirement for small government plans, "the bill will not impose new
requirements for agencies to implement in the regulatory process . .
. ."
Regulatory reform legislation currently under consideration by
Congress also contains some requirements that are similar to those in
Executive Order 12866 and existing statutes. For example, S. 981
would require agencies to conduct cost-benefit analyses for what are
essentially economically significant rules and, as part of those
analyses, to evaluate a reasonable number of alternative approaches
reflecting the range of regulatory options that would achieve the
objective of the statute. Therefore, if agencies are already
performing those analyses to comply with the executive order,
codification of the requirements through S. 981 would not impose
significant additional requirements for those rules.
However, the provisions in S. 981 are different from existing
requirements in several other respects. First, the bill would cover
more rules than are covered by UMRA or Executive Order 12866. For
example, S. 981 would cover many independent regulatory agencies,
whereas both UMRA and the executive order exclude independent
regulatory agencies. Also, the analytical requirements in S. 981
would be broader than those in UMRA. UMRA requires that cost-benefit
analyses be conducted for only a small group of rules that contain a
narrowly defined mandate and that may result in expenditures of $100
million in any 1 year by state, local, or tribal governments, in the
aggregate, or the private sector. S. 981, on the other hand,
generally would cover all rules that have an annual effect on the
economy of $100 million or that the Director of OMB declares to be a
major rule.
S. 981 also would address a number of topics that are not addressed
by either UMRA or Executive Order 12866. For example, the bill
includes requirements that agencies conduct risk assessments for
certain rules and have those risk assessments and any cost-benefit
analyses peer reviewed. Neither UMRA nor the executive order contain
such requirements. These requirements in S. 981 could also have the
effect of improving the quality of the regulatory analyses that
agencies are currently required to perform under Executive Order
12866.
AGENCY COMMENTS AND OUR
EVALUATION
----------------------------------------------------------- Letter :11
We sent a draft of this report for review and comment to the Director
of OMB; the Secretaries of USDA, HHS, and DOT; and the Administrator
of EPA. OMB, USDA, HHS, and DOT officials said they had no comments
on the draft report.
On December 24, 1997, EPA's Director of the Office of Regulatory
Management and Evaluation suggested several changes in the draft
report. First, the Director said the final report should clarify
that UMRA has not had much effect on agencies' rulemaking actions
because some rules were not subject to UMRA or because agencies
already had systems to address the act's requirements, not because
the agencies are ignoring UMRA. Therefore, he suggested changing the
title of the report to "Agencies' Rulemaking Actions Comply With
UMRA." Second, he said that EPA continued to disagree with our
conclusion that written statements were required for the national
ambient air quality standards for ozone and particulate matter, and
that the report should clarify that the only areas of disagreement
regarding these rules involved two of the five written statement
requirements. Finally, he said the title of appendix I was
misleading and should be clarified by adding a phrase or a footnote
to the title to make it clear that written statements were not
required for the rules in the table.
In response to EPA's first comment, we clarified the Results in Brief
section of this final report to more clearly indicate that we
concluded title II of UMRA did not have much effect on agencies'
rulemaking actions because of how many of the act's requirements were
written, not because of any systematic failure on the part of
rulemaking agencies. However, we did not change the title of the
report because we believe the current title more accurately reflects
the report's message than EPA's suggested change. Regarding EPA's
second comment, we changed this final report to clarify that we
disagreed with EPA's interpretation of UMRA's requirements "in one
respect," and we added a sentence noting that the disagreement
centered on two of the five written statement requirements. Finally,
in response to EPA's third comment, we added a brief discussion after
the title of appendix I indicating that, with the exception of the
ozone and particulate matter rules, we did not believe that written
statements were required for the listed rules.
--------------------------------------------------------- Letter :11.1
We are sending copies of this report to the Director of OMB; the
Secretaries of USDA, HHS, and DOT; and the Administrator of EPA. We
are also sending copies of this report to the Chairmen and Ranking
Minority Members of (1) the House Committee on Government Reform and
Oversight; (2) that Committee's Subcommittee on National Economic
Growth, Natural Resources, and Regulatory Affairs; and (3) the House
Committee on the Judiciary, Subcommittee on Commercial and
Administrative Law. We will make copies available to others on
request.
Major contributors to this report are listed in appendix III. Please
contact me on (202) 512-8676 if you or your staff have any questions
concerning this report.
L. Nye Stevens
Director, Federal Management
and Workforce Issues
ECONOMICALLY SIGNIFICANT RULES
WITHOUT WRITTEN STATEMENTS
=========================================================== Appendix I
The following table lists, by department or agency and office, the 80
economically significant rules promulgated between March 22, 1995,
and March 22, 1997, for which no written statements were on file at
CBO. We believe that no written statements were required for all but
two of these rules--EPA's national ambient air quality standards for
ozone and particulate matter. Even for these two rules, EPA appeared
to have met the substantive written statement requirements of UMRA.
The table also presents the date each of these rules was published in
the Federal Register. UMRA's written statement requirements apply to
rules promulgated after March 22, 1995. Although some of these rules
may have been promulgated before publication in the Federal Register,
none were promulgated before March 22, 1995.
Table I.1
Economically Significant Rules
Promulgated in the First 2 Years of UMRA
Title II Implementation for Which No
Written Statements Were on File at CBO
Date published in
the Federal
Department or agency Title Register Rulemaking stage
and office ------------------ ------------------ ------------------
Department of Agriculture
--------------------------------------------------------------------------------
Animal and Plant Karnal Bunt Oct. 4, 1996 Final
Health Inspection Disease; Domestic
Service Plant-related
Quarantine
Importation of Apr. 18, 1996 Proposed
Animals and Animal
Products
Commodity Credit Environmental Oct. 11, 1996 Proposed
Corporation Quality Incentives
Program
Farm Service Agency 1996 Farm Bill: July 18, 1996 Final
Implementation of
Farm Program
Provisions
1986-1990 May 8, 1995 Interim final
Conservation
Reserve Program
1995 Crop Apr. 10, 1996 Final
Sugarcane and
Sugar Beet Price
Support Loan Rates
Amendments to the July 16, 1996 Interim final
Peanut Poundage
Quota Regulations
1995 Upland Cotton June 16, 1995 Final
Program
1995 Rice Acreage Aug. 18, 1995 Final
Reduction Program
1995 Wheat and Sept. 18, 1995 Final
Feed Grain Acreage
Reduction Program
1996 Upland Cotton Oct. 10, 1995 Proposed
Program
1997 Crop Peanut Nov. 25, 1996 Proposed
National Poundage
Quota
Conservation Sept. 23, 1996 Proposed
Reserve Program--
Long-Term Policy
Conservation Feb. 19, 1997 Final
Reserve Program--
Long-Term Policy
Disaster Payment Oct. 10, 1995 Final
Program for 1990-
1994
Federal Crop General Crop Nov. 8, 1995 Proposed
Insurance Insurance
Corporation Regulations
General Aug. 20, 1996 Final
Administrative
Regulations;
Federal Crop
Insurance Reform
Act of 1994
Catastrophic Risk Aug. 20, 1996 Final
Protection
Endorsement
General Crop Dec. 7, 1995 Final
Insurance
Regulations
Food and Nutrition Child and Adult Jan. 7, 1997 Interim final
Service (formerly Care Food Program;
Food and Consumer Improved Targeting
Service) of Day Care Home
Reimbursements
Food Stamp Oct. 17, 1996 Final
Program:
Certification
Provisions of the
Mickey Leland
Childhood Hunger
Relief Act
Food Safety and Use of the Term Aug. 25, 1995 Final
Inspection Service "Fresh" on the
Labeling of Raw
Poultry Products
Foreign Agricultural Commodity Credit July 1, 1996 Interim final
Service Corporation
Supplier Credit
Guarantee Program
Dairy Tariff-Rate Oct. 9, 1996 Final
Import Quota
Licensing
Dairy Tariff-Rate Jan. 18, 1996 Proposed
Import Quota
Licensing
Department of Commerce
--------------------------------------------------------------------------------
Bureau of Export Exports of Certain Mar. 27, 1995 Final
Administration California Crude
Oil
National Oceanic and Northeast Mar. 5, 1996 Proposed
Atmospheric Multispecies
Administration Fishery: Amendment
7
Northeast May 31, 1996 Final
Multispecies
Fishery: Amendment
7
Department of Health and Human Services
--------------------------------------------------------------------------------
Food and Drug Substances Jan. 3, 1997 Proposed
Administration Prohibited From
Use in Animal Food
or Feed
Medical Devices: Oct. 7, 1996 Final
Current Good
Manufacturing
Practices
Food Labeling, Aug. 7, 1996 Final
Nutrition
Labeling, Small
Business Exemption
Health Care Medicaid Program: Sept. 23, 1996 Notice
Financing Limitations on
Administration Aggregate Payments
to
Disproportionate
Share Hospitals:
Federal Fiscal
Year 1996
Medicaid Program: May 9, 1996 Notice
Limitations on
Aggregate Payments
to
Disproportionate
Share Hospitals:
Federal Fiscal
Year 1996
Medicare Program: Oct. 16, 1995 Notice
Monthly Actuarial
Rates and Monthly
Supplementary
Medical Insurance
Premium Rate
Beginning January
1, 1996
Medicaid Program: Sept. 8, 1995 Notice
Final Limitations
on Aggregate
Payments to
Disproportionate
Share Hospitals:
Federal Fiscal
Year 1995
Medicare Program: July 1, 1996 Notice
Schedule of Limits
on Home Health
Agency Costs per
Visit for Cost
Recording Periods
Beginning on or
After July 1, 1996
Medicare Program: July 2, 1996 Proposed
Revisions to
Payment Policies
Under the
Physician Fee
Schedule for
Calendar Year 1997
Medicare Program: June 12, 1995 Notice
HHS' Approval of
NAIC Statements
Relating to
Duplication of
Medicare Benefits
Medicare Program: Sept. 1, 1995 Final
Changes to the
Hospital Inpatient
Prospective
Payment Systems
and Fiscal Year
1996 Rates
Medicare Program: June 8, 1995 Proposed
Changes to the
Hospital Inpatient
Prospective
Payment Systems
and Fiscal Year
1996 Rates
Medicare Program: Nov. 22, 1996 Final
Revisions to
Payment Policies
Under the
Physician Fee
Schedule for
Calendar Year 1997
Medicare Program: Aug. 14, 1995 Final
Physician
Financial
Relationships
With, and
Referrals to,
Health Care
Entities That
Furnish Clinical
Laboratory
Services and
Financial
Relationship
Reporting
Requirements
Medicare Program: Aug. 30, 1996 Final
Changes to the
Hospital Inpatient
Prospective
Payment Systems
and Fiscal Year
1997 Rates
Medicare Program: May 31, 1996 Proposed
Changes to the
Hospital Inpatient
Prospective
Payment Systems
and Fiscal Year
1997 Rates
Department of Housing and Urban Development
--------------------------------------------------------------------------------
Office of the Sale of HUD-Held Jan. 24, 1997 Final
Assistant Secretary Single Family
for Housing Mortgages
Sale of HUD-Held Aug. 31, 1995 Interim final
Single Family
Mortgages
Single Family July 3, 1996 Interim final
Mortgage
Insurance-Loss
Mitigation
Procedures
Office of the Requirements for June 7, 1996 Proposed
Secretary Notification,
Evaluation, and
Reduction of Lead-
Based Paint
Hazards in
Federally Owned
Residential
Property and
Housing Receiving
Federal Assistance
Department of Justice
--------------------------------------------------------------------------------
Drug Enforcement Implementation of June 22, 1995 Final
Agency the Domestic
Chemical Diversion
Control Act of
1993 (P.L. 103-
200)
Immigration and Inspection and Jan. 3, 1997 Proposed
Naturalization Expedited Removal
Service of Aliens;
Detention and
Removal of Aliens;
Conduct of Removal
Proceedings:
Asylum Procedures
Charging of Fees Aug. 7, 1995 Final
for Services at
Land Border Ports-
of-Entry
Inspection and Mar. 6, 1997 Interim final
Expedited Removal
of Aliens;
Detention and
Removal of Aliens;
Conduct of Removal
Proceedings:
Asylum Procedures
Department of Labor
--------------------------------------------------------------------------------
Employment and Disaster May 11, 1995 Interim final
Training Unemployment
Administration Assistance Program
Wage and Hour Service Contract; May 2, 1996 Proposed
Division Labor Standards
for Federal
Service Contracts
Service Contract Dec. 30, 1996 Final
Act; Labor
Standards for
Federal Service
Contracts
Service Contract Oct. 25, 1996 Proposed
Act; Labor
Standards for
Federal Service
Contracts
Department of the Interior
--------------------------------------------------------------------------------
Fish and Wildlife Migratory Bird Mar. 13, 1997 Proposed
Service Hunting; Proposed
1997-98 Migratory
Game Bird Hunting
Regulations
(Preliminary) With
Requests for
Indian Tribal
Proposals
Migratory Bird Sept. 26, 1996 Final
Hunting: Final
Frameworks for
Late-Season
Migratory Bird
Hunting
Regulations
Migratory Bird Mar. 22, 1996 Proposed
Hunting; Proposed
1996-97 Migratory
Game Bird Hunting
Regulations
(Preliminary) With
Requests for
Indian Tribal
Proposals
Migratory Bird Sept. 27, 1995 Final
Hunting: Final
Frameworks for
Late-Season
Migratory Bird
Hunting
Regulations
Migratory Bird Aug. 29, 1995 Final
Hunting: Final
Frameworks for
Early-Season
Migratory Bird
Hunting
Regulations
Migratory Bird Aug. 29, 1996 Final
Hunting: Final
Frameworks for
Early-Season
Migratory Bird
Hunting
Regulations
Department of Transportation
--------------------------------------------------------------------------------
National Highway Light Truck Apr. 3, 1996 Final
Traffic Safety Average Fuel
Administration Economy Standard,
Model Year 1998
Office of the Domestic Passenger Mar. 13, 1997 Advance Notice of
Secretary Manifest Proposed Rule-
Information making
Environmental Protection Agency
--------------------------------------------------------------------------------
Air and Radiation National Emission Aug. 18, 1995 Final
Standards for Air
Pollutants:
Petroleum
Refineries
Federal Operating Apr. 27, 1995 Proposed
Permits Program
Control of Air Oct. 10, 1995 Proposed
Pollution From New
Motor Vehicles
Federal Operating July 1, 1996 Final
Permits Program
NAAQS for Dec. 13, 1996 Proposed
Particulate Matter
NAAQS for Ozone Dec. 13, 1996 Proposed
Pollution Prevention Lead: Requirements Aug. 29, 1996 Final
and Toxic Substances for Lead-Based
Paint Activities
Solid Waste & Identification and Dec. 21, 1995 Proposed
Emergency Response Listing of
Hazardous Waste
Financial Nov. 27, 1996 Final
Assurance
Mechanisms
Corrective Action May 1, 1996 Advance Notice of
for Releases From Proposed Rule-
Solid Waste making
Management Units
Requirements for Apr. 29, 1996 Proposed
Management of
Hazardous
Contaminated Media
Small Business Administration
--------------------------------------------------------------------------------
Small Business Sale of Feb. 26, 1997 Proposed
Administration Unguaranteed
Portions of Loan
Small Business May 26, 1995 Proposed
Size Regulations;
Non-Manufacturer
Rule
Social Security Administration
--------------------------------------------------------------------------------
Social Security Cycling Payment of Feb. 11, 1997 Final
Administration Social Security
Benefits
Cycling Payment of Jan. 26, 1996 Proposed
Social Security
Benefits
Determining Feb. 11, 1997 Interim final
Disability for an
Individual Under
Age 18 --
Supplemental
Security Income
--------------------------------------------------------------------------------
Sources: RISC and GAO.
ECONOMICALLY SIGNIFICANT RULES
WITH WRITTEN STATEMENTS
========================================================== Appendix II
The following table lists, by department or agency and office, the 30
economically significant rules promulgated between March 22, 1995,
and March 22, 1997, for which written statements were on file at CBO.
The table also presents the date each of these rules was published in
the Federal Register. UMRA's written statement requirements apply to
rules promulgated after March 22, 1995. Although some of these rules
may have been promulgated before publication in the Federal Register,
none were promulgated before March 22, 1995.
Table II.1
Economically Significant Rules
Promulgated in the First 2 Years of UMRA
Title II Implementation for Which
Written Statements Were on File at CBO
Date published in
the Federal
Department or agency Title Register Rulemaking stage
and office ------------------ ------------------ ------------------
Department of Agriculture
--------------------------------------------------------------------------------
Food Safety and Pathogen July 25, 1996 Final
Inspection Service Reduction; Hazard
Analysis and
Critical Control
Point (HACCP)
Systems
Department of Energy
--------------------------------------------------------------------------------
Office of Energy Energy July 20, 1995 Proposed
Efficiency and Conservation
Renewable Energy Program for
Consumer Products:
Proposed
Rulemaking
Regarding Energy
Conservation
Standards for
Refrigerators,
Refrigerator-
Freezers, and
Freezers
Department of Health and Human Services
--------------------------------------------------------------------------------
Food and Drug Regulations Aug. 11, 1995 Proposed
Administration Restricting the
Sale and
Distribution of
Cigarettes and
Smokeless Tobacco
Products to
Protect Children
and Adolescents
Regulations Aug. 28, 1996 Final
Restricting the
Sale and
Distribution of
Cigarettes and
Smokeless Tobacco
Products to
Protect Children
and Adolescents
Procedures for the Dec. 18, 1996 Final
Safe and Sanitary
Processing and
Importing of Fish
and Fishery
Products
Mammography Apr. 3, 1996 Proposed
Quality Standards
Health Care Medicaid Program; Sept. 19, 1995 Proposed
Financing Payment for
Administration Covered Outpatient
Drugs Under Drug
Rebate Agreements
With Manufacturers
Department of Labor
--------------------------------------------------------------------------------
Occupational Health Occupational Jan. 10, 1997 Final
and Safety Exposure to
Administration Methylene Chloride
Department of Transportation
--------------------------------------------------------------------------------
National Highway Federal Motor Aug. 18, 1995 Final
Traffic Safety Vehicle Safety
Administration Standards; Head
Impact Protection
Federal Motor Feb. 20, 1997 Proposed
Vehicle Safety
Standards; Child
Restraint Systems;
Tether Anchorages
and Anchorage
Systems
United States Coast Operational Nov. 3, 1995 Proposed
Guard Measures to Reduce
Oil Spills from
Existing Tank
Vessels
Vessel Response Jan. 12, 1996 Final
Plan
Environmental Protection Agency
--------------------------------------------------------------------------------
Air and Radiation Acid Rain Phase II Oct. 10, 1995 Proposed
Nitrogen Oxides
Emission Reduction
Program
Acid Rain Phase II Dec. 19, 1996 Final
Nitrogen Oxides
Emission Reduction
Program
Revisions to the Oct. 22, 1996 Final
Federal Test
Procedures for
Emissions From
Motor Vehicles
Control of June 27, 1996 Proposed
Emissions of Air
Pollution From
Highway Heavy-
Duty Engines
Certification July 5, 1996 Final
Standards for
Deposit Control
Gasoline
Federal Standards Sept. 19, 1995 Final
for Marine Tank
Vessel Loading and
Unloading Program
Air Emissions From Mar. 12, 1996 Final
Municipal Solid
Waste Landfills
Standards of Dec. 19, 1995 Final
Performance for
New Stationary
Sources: Municipal
Waste Combustors
Emission Standards Feb. 11, 1997 Proposed
for New
Locomotives and
New Engines Used
in Locomotives
Air Pollution Oct. 4, 1996 Final
Emission Standards
for New Nonroad
Spark Ignition
Marine Engines
Pollution Prevention Pesticides and June 26, 1996 Proposed
and Toxic Substances Ground Water State
Management Plan
Addition of June 27, 1996 Proposed
Facilities in
Certain Industry
Sectors; Toxic
Chemical Release
Reporting
Solid Waste & Land Disposal Aug. 22, 1995 Proposed
Emergency Response Restrictions Phase
IV
Supplemental Jan. 25, 1996 Proposed
Proposal to Phase
IV Land Disposal
Restrictions Rule
Accidental Release June 20, 1996 Final
Prevention
Requirement
Proposed Revised Apr. 19, 1996 Proposed
Standards for
Hazardous Waste
Combustors
Land Disposal Apr. 8, 1996 Final
Restrictions Phase
III
Water Metal Products and May 30, 1995 Proposed
Machinery Effluent
Guidelines,
Pretreatment
Standards, and New
Source Performance
Standards
--------------------------------------------------------------------------------
Sources: CBO and GAO.
MAJOR CONTRIBUTORS TO THIS REPORT
========================================================= Appendix III
GENERAL GOVERNMENT DIVISION,
WASHINGTON, D.C.
Curtis Copeland, Assistant Director, (202) 512-8101
Theresa Roberson, Evaluator-in-Charge
Joseph Santiago, Senior Evaluator
Kiki Theodoropoulos, Senior Evaluator (Communications Analyst)
Thomas Beall, Technical Advisor
OFFICE OF THE GENERAL COUNSEL,
WASHINGTON, D.C.
Alan Belkin, Assistant General Counsel
Susan Michal-Smith, Senior Attorney
*** End of document. ***