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THE WHITE HOUSE
WASHINGTON
June 12, 1996
MEMORANDUM TO LEON PANETTA
FROM:
Marcia HaleW
Carol Rasco
Sally Katzen
SUBJECT: Advisory Commission on Intergovernmental Relations (ACIR) Draft Report
Governor Winter, ACIR's Chairman, has asked Marcia Hale to confidentially review a
new draft of ACIR's unfunded mandates report. Although this draft addresses some of our
previous concerns and is apparently acceptable to Governor Winter and possibly to other
Democratic Commission members, we recommend that the three Administration officials on
the Commission -- Marcia Hale, Secretary Riley, and Administrator Browner -- oppose the
report and work to ensure other Democratic members oppose it. This memo seeks your
approval of this approach.
Background
o
ACIR's Congressional Charge -- The Unfunded Mandates Reform Act directs ACIR
to "review the role of Federal mandates in intergovernmental relations," including
establishing a framework and measurement tools for evaluating mandates and
identifying specific mandates that should be addressed.
o
Previous Administration Position -- In January, the Commission voted to release a
draft report for public comment. Federal Agencies commented extensively on the
draft. In addition, on March 1, 1996 Marcia Hale wrote to Governor Winter stating
the Administration's strong objections to the report's analytic approach and policy
conclusions (letter attached). The letter indicated the draft report:
did not adequately speak to ACIR's Congressional charge to establish a broad
conceptual framework for considering individual mandates;
did little to further consensus on fundamental questions such as how to
measure the costs and benefits of mandates;
presented misleading analyses of 14 Federal health, safety, environmental,
worker protection, and civil rights laws and recommended unacceptable
changes to most of these laws;
o
failed in its analyses to consider the views of or effects on working men and
women as directed by Congress; and
o
went beyond the scope of the Act by suggesting changes to disability civil
rights statutes excluded by the Act.
Revised Draft
o
Content --- The new draft, although less egregious in its recommendations (attached),
contains the same fundamental flaws. For example, the report:
o
still largely fails to consider benefits (the final page acknowledges ACIR did
not consider the benefits of mandates on working men and women);
to mitigate what ACIR characterizes as costly mandates, recommends increased
Federal spending and/or technical assistance for 7 statutes -- Occupational
Safety and Health Act (OSHA), Omnibus Transportation Employee Testing
Act (drug and alcohol testing), Clean Water Act (CWA), Individuals with
Disabilities Education Act (IDEA), Americans with Disabilities Act (ADA),
Safe Drinking Water Act (SDWA), and Clean Air Act (CAA) -- and
recommends new bureaucratic structures to assist states;
o
argues (unconvincingly) that two disability civil rights statutes -- ADA and
IDEA -- are within the Commission's scope and recommends unacceptable
changes to ADA;
o
proposes more moderate but still problematic changes to 5 statutes -- the Fair
Labor Standards Act (FLSA), Transportation Employee Testing Act, CWA,
ADA, and Davis-Bacon related acts; and,
o
recommends a study of laws that provide private rights of action against state
and local governments and recommends that the study be concluded prior to
reauthorizing any existing statutes (e.g. environmental laws) with such
provisions or enacting new statutes with such language.
o
Status -- Governor Winter is ready to ask Commissioners to vote to approve the
report. The Commission sunsets at the end of this fiscal year, is short on funds, and is
eager to conclude its work.
Recommendation
Administration officials should oppose the revised draft and urge other Democratic
members to oppose it.
pros
o
This document is not good government and is not consistent with the
Administration's message on unfunded mandates. It is a one-sided
presentation of a complicated issue that stresses costs and calls for more
Federal spending.
o
We are being urged by labor, environmental and disability groups to repudiate
the report; fiscal conservatives could also criticize us for supporting it.
o
The Administration already has a strong record on unfunded mandates. We've
issued executive orders and taken strong actions to implement the Unfunded
Mandates Reform Act. We've also proposed changes to address certain specific
burdens identified in the report (e.g. reporting requirements in IDEA) and have
provided enhanced technical assistance and flexibility under numerous statutes.
cons
o
Some Democratic Commission members may support the report, isolating
Administration Democrats.
o
We could be criticized for not acting aggressively to address the burden of
unfunded mandates.
o
We could be criticized as being inflexible given improvements in this draft.
Attachments
ADVISORY COMMISSION
ON INTERGOVERNMENTAL RELATIONS
Members of the Commission
Private Citizens
Peter Lucas, Director of Legislative Affairs,
Massachusetts Bay Transportation Authority, Boston, MA
Richard P. Nathan, Director, Nelson A. Rockefeller Institute of Government, Albany, NY
William F. Winter, CHAIRMAN, Senior Partner, Watkins, Ludiam & Stennis, Jackson, MS
Members of the U.S. Senate
Bob Graham, Florida
Dirk Kempthome, Idaho
Craig Thomas, Wyoming
Members of the U.S. House of Representatives
James P. Moran, Virginia
Donald M. Payne, New Jersey
(Vacancy)
Officers of the Executive Branch, Federal Government
Carol M. Browner, Administrator,
U.S. Environmental Protection Agency
Marcia L. Hale, Assistant to the President
and Director of Intergovernmental Affairs
Richard W. Riley, Secretary,
U.S. Department of Education
Governors
Ame H. Carlson, Minnesota
Howard Dean, Vermont
Michael O. Leavitt, Utah
Bob Miller, Nevada
Mayors
Victor H. Ashe, Knoxville, TN
Gregory Lashutka, Columbus, OH
Edward G. Rendell, Philadelphia, PA
Bruce M. Todd, Austin, TX
State Legislators
Paul Bud Burke, President, Kansas Senate
Art Hamilton, Minority Leader, Arizona House of Representatives
(Vacancy)
Elected County Officials
Randall Franke. Commissioner, Marion County, OR
Gloria Molina, Supervisor, Los Angeles County, CA
John H. Stroger, Jr., Commission President, Cook County, IL
800 K Street, NW, Suite 450, South Building, Washington, DC 20575
Telephone: (202) 653-5540 Fax: (202) 653-5429
The Role of
FEDERAL MANDATES
in Intergovernmental Relations
(Draft: May 30, 1996)
RECOMMENDATIONS ON INDIVIDUAL MANDATES:
1. Fair Labor Standards Act:
Retain state and local government coverage under the FLSA but amend the Act to
allow state and local government compliance with either the policies of the Act or the
comparable policies of the federal government under Title 5, USC.
2. Family and Medical Leave Act:
Retain state and local government coverage under the FMLA.
3. Occupational Safety and Health Act:
Make no change in OSHA language regarding state and local government compliance;
but, increase DOL consultation activities with state and local governments and increase federal
funding sources for state and local government training and technical assistance on OSHA
requirements as well as funding for implementation of requirements.
4. Drug and Alcohol Testing of Commercial Drivers:
Amend the law (ISTEA) to permit alternative testing requirements or program
certification in lieu of testing requirements for small governments. In addition, the federal
government should increase technical assistance to state and local governments on
transportation safety requirements including the control and monitoring of drug and alcohol
abuses by drivers.
5. Metric Conversion for Plans and Specifications:
Congress and the President are commended for extending the deadline for metric
conversion of plans and specifications to the year 2000.
1
6. Medicaid: Boren Amendment:
Repeal the language of the Boren Amendment and insert language specifying that rate
determinations are the sole responsibility of each participating state and that such rates must
be established to assure that health and nursing home care is provided in conformity with
applicable federal and state laws and regulations related to quality of care and safety
standards.
7. The Clean Water Act:
Increase federal funding for states and local government to support construction of
municipal wastewater facilities and amend the Act to give EPA specific authority to extend
deadlines for compliance on a case-by-case basis.
8. Individuals with Disabilities Education Act:
Increase federal funding to 40% of the excess costs of special education as is
authorized by the Individuals with Disabilities Education Act and amend the Act to relieve
state and local governments of prescriptive administrative and recordkeeping requirements
unrelated to the education of individuals with disabilities. Also, amend the Act to foster
increased use of mediation and other forms of alternative dispute resolution.
9. Americans with Disabilities Act:
Provide increased technical assistance and educational information to state and local
governments, as well as increased funding for compliance with mandated ADA requirements.
Amend ADA to require the federal government to coordinate enforcement and technical
assistance in areas where there are cross-agency issues.
10. The Safe Drinking Water Act:
Enact amendments to the Safe Drinking Water Act similar to those approved by the
Senate in S.1316 (104th Congress) including language permitting states increased flexibility
for implementation of national standards.
11. Endangered Species Act:
Amend the law to give state and local governments an official role in the management
and planning decisions affecting the listing process, beyond the traditional consultation and
full notice and comment requirements currently in effect.
2
12. The Clean Air Act:
Make no change in existing federal standards but increase federal aid and technical
assistance to help states comply.
13. Davis-Bacon Related Acts:
Amend the related laws to exempt projects below a higher dollar threshold than exists
in most laws and consider exempting projects in which federal participation is a low
percentage of total project costs.
14. Required Use of Recycles Crumb Rubber (Repealed)
Commend the Congress and the President for repealing this federal mandate.
RECOMMENDATIONS ON COMMON ISSUES:
1. Detailed Procedural Requirements:
In general, state and local governments should be permitted, through statutory
language, flexibility in choosing the methods 3used to comply with a federal mandate.
Federal agencies should assist state and local governments by providing research and technical
advice on implementation approaches and methods to save the state and local governments
design and adaptation costs, whenever possible. The focus of federal statutes, regulations, and
policies should be on results, not process.
2. Lack of Federal Concern About and Fund of Mandate Costs:
As requires by the Unfunded Mandates Reform Act, the federal government should
take federal, state, and local costs of policy implementation into consideration before enacting
a law containing a federal mandate on state and local governments. In addition, the federal
government should assume some share of mandate costs as an incentive to restrain the extent
of the mandate and to aid in seeking the least costly alternatives.
3. Federal Failure to Recognize State and Local Governments as Governments:
Federal laws are regulatory policies should recognize that state, local, and tribal
governments are co-makers of national policy who, in contrast to interest groups and private
entities, are led by elected officials who must account to the voters within their respective
jurisdictions just as do the President and the Members of the US Congress.
3
4. Authorization of Lawsuits Against State and Local Governments to Enforce Federal
Law:
The federal government should commission a study to examine the constitutional and
intergovernmental issues raised by laws authorizing private rights of action against state and
local governments. Such a study should be concluded prior to enactment of any more
statutory language authorizing private rights of action against state or local governments and
prior to any re-authorization of existing statutes with such language.
5. Inability of Very Small Local Governments to Meet Mandate Standards and
Timetables:
The federal government should increase the number of laws and regulation that allow
for deadline extensions or requirement modifications for very small governments that cannot
meet existing time limitations or cannot afford compliance with national standards.
6. Insufficient Communication on or Ineffective Coordination of Federal Policies:
The federal government should establish a coordination mechanism to assist state and
local governments through the federal policy maze. The coordination mechanism should be
designed to avoid the conflicts of interest that arise in a lead agency process because a lead
agency usually has program as well as coordination responsibilities. Desk officers could be
assigned for each state as a single point of contact or ombudsperson for questions on federal
policies and common rules could be drafted to implement mandates under the jurisdiction of
multiple federal agencies. In addition, an arbitration process could be developed to make
binding decisions on issues related to federal mandates that arise among federal agencies or
between the federal agencies or between the federal government and state or local
governments.
4
EXECUTIVE OFFICE OF THE PRESIDENT
23-Jul-1996 12:16pm
TO:
Sally Katzen
TO:
Elizabeth E. Drye
FROM:
Daniel J. Chenok
Office of Mgmt and Budget, OIRA
CC:
Marcia L. Hale
SUBJECT:
Final votes
The final tally was 13-7 (Kempthorne voted yes) against the
report.
The motion to have the Chair recommend whether to continue after
consultation with Congress and the President was passed
unanimously.
THE WHITE HOUSE
WASHINGTON
July 19, 1996
INFORMATION
MEMORANDUM TO THE PRESIDENT
FROM:
Marcia Hale must
Sally Katzen
Carol Rasco CHR
SUBJECT:
Pending Vote on the Advisory Commission on Intergovernmental Relations'
(ACIR's) Unfunded Mandates Report
I. SUMMARY
The Advisory Commission on Intergovernmental Relations (ACIR), chaired by
Governor Winter, will vote on a final report on unfunded mandates Tuesday, July 23, 1996.
The Administration commented extensively and critically on previous drafts of the report.
Although this draft addresses some of our previous concerns, the three Administration
officials on the Commission -- Marcia Hale, Secretary Riley, and Administrator Browner --
will oppose the report and are urging other members to oppose it. The decision to oppose the
report was difficult; the vote is likely to be close and partisan. Governor Winter may call
you between now and Tuesday to discuss the report.
II. DISCUSSION
Background
The Unfunded Mandates Reform Act directed ACIR to "review the role of Federal
mandates in intergovernmental relations," including establishing a framework and
measurement tools for evaluating mandates and identifying specific mandates that should be
addressed. ACIR circulated a draft report last spring. On March 1, 1996, Marcia Hale
wrote to Governor Winter stating the Administration's strong objections to the report. The
draft report: (1) did little to further understanding of fundamental questions such as how to
measure the costs and benefits of mandates or how state mandates affect local governments;
(2) presented one-sided, misleading analyses of 14 Federal health, safety, environmental,
worker protection, and civil rights laws and recommended unacceptable changes to most of
these laws; and (3) failed in its analyses to consider the views of or effects on working men
and women as directed by Congress.
Reasons for Opposing Report
The new report still fails to respond to the broad questions the Congress posed to
ACIR about unfunded mandates. It remains a one-sided report that in places inaccurately
characterizes requirements of current statutes and our approach to implementing them. The
final draft recommends more moderate but still unacceptable statutory changes to provide
relief to state and local governments while failing to adequately consider the effect of those
changes on citizens and the environment. For example, the report proposes to:
o
Amend the Individuals with Disabilities Education Act and significantly increase
Federal funding (disability and civil rights groups oppose this recommendation; we
have argued that civil rights statutes are exempt from consideration by ACIR);
Amend Davis Bacon-related laws (requiring prevailing wages be paid to employees
under certain federally-funded contracts) to consider exempting projects in which
federal participation is a lower percentage of total project costs (labor opposes).
o
Amend the Fair Labor Standards Act to allow state policies to be consistent with
either with current law or with comparable policies that currently apply to the Federal
government only (labor groups oppose);
Amend the Clean Water Act to allow EPA to extend compliance deadlines on a case-
by-case basis (environmental groups oppose);
The report also:
recommends a commission study laws that provide private rights of action against
state and local governments before Congress reauthorizes any existing statutes (e.g.
environmental laws) with such provisions or enacts any new statutes with such
language (labor, environmental, and civil rights groups oppose); and
o
to mitigate what ACIR characterizes as costly mandates, recommends increased
Federal spending and/or technical assistance for 6 statutes and recommends new
Federal bureaucratic structures to assist states.
It was our hope that ACIR would provide a context in which to consider ways to
further address state and local governments' concerns while maintaining our commitment to
national objectives. We recognize that a vote against the report could be viewed as a vote
against the states and for "unfunded mandates." We nevertheless feel that the report presents
a one-sided, fundamentally flawed analyses and that we should not support it.
You have a strong record on unfunded mandates. You signed Executive Order 12875
during your first year in office to ensure that new regulations do not place undue burdens on
states and communities. In March of 1995, you signed the Unfunded Mandates Reform Act.
In March of this year we reported to Congress on the significant progress Federal agencies
have made in implementing the Act. The Administration has also worked cooperatively with
state and local governments to help them take full advantage of the flexibility that already
exists in many Federal statutes. As ACIR concludes its work, we will work to ensure that
your record and our reasons for opposing the Commission's report are well understood.
THE WHITE HOUSE
WASHINGTON
July 19, 1996
INFORMATION
MEMORANDUM TO THE PRESIDENT
FROM:
Marcia HaleWuA
Carol Rasco CHR
Sally Katzen
SUBJECT:
Pending Vote on the Advisory Commission on Intergovernmental Relations'
(ACIR's) Unfunded Mandates Report
I. SUMMARY
The Advisory Commission on Intergovernmental Relations (ACIR), chaired by
Governor Winter, will vote on a final report on unfunded mandates Tuesday, July 23, 1996.
The Administration commented extensively and critically on previous drafts of the report.
Although this draft addresses some of our previous concerns, the three Administration
officials on the Commission - -- Marcia Hale, Secretary Riley, and Administrator Browner --
will oppose the report and are urging other members to oppose it. The decision to oppose the
report was difficult; the vote is likely to be close and partisan. Governor Winter may call
you between now and Tuesday to discuss the report.
II. DISCUSSION
Background
The Unfunded Mandates Reform Act directed ACIR to "review the role of Federal
mandates in intergovernmental relations," including establishing a framework and
measurement tools for evaluating mandates and identifying specific mandates that should be
addressed. ACIR circulated a draft report last spring. On March 1, 1996, Marcia Hale
wrote to Governor Winter stating the Administration's strong objections to the report. The
draft report: (1) did little to further understanding of fundamental questions such as how to
measure the costs and benefits of mandates or how state mandates affect local governments;
(2) presented one-sided, misleading analyses of 14 Federal health, safety, environmental,
worker protection, and civil rights laws and recommended unacceptable changes to most of
these laws; and (3) failed in its analyses to consider the views of or effects on working men
and women as directed by Congress.
Reasons for Opposing Report
The new report still fails to respond to the broad questions the Congress posed to
ACIR about unfunded mandates. It remains a one-sided report that in places inaccurately
characterizes requirements of current statutes and our approach to implementing them. The
final draft recommends more moderate but still unacceptable statutory changes to provide
relief to state and local governments while failing to adequately consider the effect of those
changes on citizens and the environment. For example, the report proposes to:
o
Amend the Individuals with Disabilities Education Act and significantly increase
Federal funding (disability and civil rights groups oppose this recommendation; we
have argued that civil rights statutes are exempt from consideration by ACIR);
Amend Davis Bacon-related laws (requiring prevailing wages be paid to employees
under certain federally-funded contracts) to consider exempting projects in which
federal participation is a lower percentage of total project costs (labor opposes).
Amend the Fair Labor Standards Act to allow state policies to be consistent with
either with current law or with comparable policies that currently apply to the Federal
government only (labor groups oppose);
Amend the Clean Water Act to allow EPA to extend compliance deadlines on a case-
by-case basis (environmental groups oppose);
The report also:
recommends a commission study laws that provide private rights of action against
state and local governments before Congress reauthorizes any existing statutes (e.g.
environmental laws) with such provisions or enacts any new statutes with such
language (labor, environmental, and civil rights groups oppose); and
to mitigate what ACIR characterizes as costly mandates, recommends increased
Federal spending and/or technical assistance for 6 statutes and recommends new
Federal bureaucratic structures to assist states.
It was our hope that ACIR would provide a context in which to consider ways to
further address state and local governments' concerns while maintaining our commitment to
national objectives. We recognize that a vote against the report could be viewed as a vote
against the states and for "unfunded mandates." We nevertheless feel that the report presents
a one-sided, fundamentally flawed analyses and that we should not support it.
You have a strong record on unfunded mandates. You signed Executive Order 12875
during your first year in office to ensure that new regulations do not place undue burdens on
states and communities. In March of 1995, you signed the Unfunded Mandates Reform Act.
In March of this year we reported to Congress on the significant progress Federal agencies
have made in implementing the Act. The Administration has also worked cooperatively with
state and local governments to help them take full advantage of the flexibility that already
exists in many Federal statutes. As ACIR concludes its work, we will work to ensure that
your record and our reasons for opposing the Commission's report are well understood.
BRIEFING BOOK FOR ACIR MEETING ON UNFUNDED MANDATES REPORT
July 23, 1996
Hall of States
TAB A
Opening statement from Marcia Hale opposing report with no amendments
TAB B
POTUS Memo summarizing issue
TAB C
Letters from Hale, EPA, ED to ACIR opposing report
TAB D
Other opposing views from DOL, DPC, and Citizens for Sensible Safeguards
TAB E
ACIR Commission member briefing book (includes report at Tab B)
TAB F
June 12 WS Chief of Staff memo opposing initial revisions to report
TAB G
Letters from Hale & Agencies, Katzen March 22 testimony opposing preliminary
report
TAB H
Title III of Unfunded Mandates Act authorizing report
TAB I
OMB Counsel memo on ACIR funding status
- DRAFT PRESS STATEMENT --
The President is committed to addressing state, local and tribal
government's concerns about unfunded mandates and has taken
significant actions toward that end. Regrettably, the
Administration must oppose the Advisory Commission on
Intergovernmental Relations' (ACIR's) draft final Report: The
Role of Federal Mandates in Intergovernmental Relations. The
report fails to respond to the broad questions the Congress posed
to ACIR about unfunded mandates, and instead recommends statutory
changes without adequately considering the effect of those
changes on working men and women and the environment. The
Administration will continue to work with all levels of
government to further our understanding of and response to
unfunded mandates.
A
- DRAFT PRESS STATEMENT --
The President is committed to addressing state, local and tribal
government's concerns about unfunded mandates and has taken
significant actions toward that end. Regrettably, the
Administration must oppose the Advisory Commission on
Intergovernmental Relations' (ACIR's) draft final Report: The
Role of Federal Mandates in Intergovernmental Relations. The
report fails to respond to the broad questions the Congress posed
to ACIR about unfunded mandates, and instead recommends statutory
changes without adequately considering the effect of those
changes on working men and women and the environment. The
Administration will continue to work with all levels of
government to further our understanding of and response to
unfunded mandates.
STATEMENT ON UNFUNDED MANDATES REPORT
by
Marcia Hale
Asst. to the President for
Intergovernmental Affairs
-- DRAFT --
The Clinton Administration has a strong record on unfunded
mandates. We pushed for passage of the Unfunded Mandates Reform
Act that called for this report. I had hoped the Commission's
work would help us think more clearly and constructively about
unfunded mandates. All of us are searching for ways to better
address state and local governments' concerns while meeting the
goals embodied in Federal statutes. Regrettably, however, the
Administration cannot support the ACIR report.
Before turning to the report, I want to emphasize the
significant action the Administration has taken to address state
and local government concerns about unfunded mandates. The
President signed Executive Order 12875 during his first year in
office to ensure that new regulations do not place undue burdens
on states and communities. In March of 1995, he signed the
Unfunded Mandates Reform Act. In March of this year we reported
to Congress on the significant progress Federal agencies have
made in implementing the Act. The Administration has also worked
cooperatively with state and local governments to help them take
full advantage of the flexibility that already exists in many
Federal statutes.
Unfortunately, the Commission's draft final report doesn't
move us further forward.
As you know, the Unfunded Mandates Reform Act directed this
Commission to review the role of unfunded mandates in
intergovernmental relations. It directed us:
to establish a framework for analyzing and discussing
mandates;
to develop measurement tools for evaluating mandates;
to examine the impact of unfunded state mandates on local
governments; and
to identify specific mandates that should be addressed.
This is a tall order, and as you know the Commission had
limited resources. Regrettably, the Commission has focused on
specific mandates without establishing a clear framework for
analysis. Further, the Commission did not consider the views of
working men and women in its assessments as directed by Congress.
As a result, ACIR's recommendations do not reflect a balanced or
careful consideration of the issues.
It would not be productive to debate the individual
recommendations -- each one raises multiple issues and could
consume hours of our time.
For example, the report discusses the costs to states and
local governments of citizen suit provisions. It also calls for
a study of such laws. But it does not discuss the success such
provisions have had in ensuring full implementation of critical
federal statutes. Based on this one-sided analysis, the report
recommends that Congress hold hostage all legislation with such
provisions until the study is completed. Without considering the
consequences for people and the environment, the report concludes
that Congress should not reauthorize the Safe Drinking Water Act,
the Individuals with Disability Education Act, Medicaid law, or a
myriad of other statutes with citizen suit provisions, and should
not pass any new laws with these provisions, until another
Commission has studied the issue further.
The Administration cannot support this approach. Citizen
suits have proved highly beneficial in ensuring Federal statutes
are implemented as intended by Congress.
In this and other areas of the report the Commission has
simply overreached while failing to complete first things first.
In short, the report contains a series of recommendations that
are not well supported and does not meet Congress's charge that
it provide a framework for looking at unfunded mandates in a
coherent and balanced way.
The Administration commented extensively on the previous
draft ACIR report. We appreciate the Commission's hard work in
making revisions to the draft that incorporate many of our
comments. Nevertheless, we regrettably cannot support the
current draft for the reasons I have stated and as I discussed in
more detail in my July 3 letter to Governor Winter. There is no
easy way to amend the draft given its fundamental shortcomings.
We therefore urge the Commission to vote to disapprove it without
amendments.
***
I know the members of this Commission share my and the
President's commitment to making further progress in addressing
unfunded mandates and improving intergovernmental relations. The
Commission has produced a number of reports that have improved
our understanding of intergovernmental relations and have led to
real improvements in Federal policy as it affects state, local
and tribal governments. The Administration has appreciated the
ACIR's contributions.
I look forward to continuing this dialogue on unfunded
mandates beyond the work of this Commission.
THE WHITE HOUSE
WASHINGTON
July 19, 1996
INFORMATION
MEMORANDUM TO THE PRESIDENT
FROM:
Marcia Hale must
Carol Rasco
Sally Katzen
SUBJECT:
Pending Vote on the Advisory Commission on Intergovernmental Relations'
(ACIR's) Unfunded Mandates Report
1. SUMMARY
The Advisory Commission on Intergovernmental Relations (ACIR), chaired by
Governor Winter, will vote on a final report on unfunded mandates Tuesday, July 23, 1996.
The Administration commented extensively and critically on previous drafts of the report.
Although this draft addresses some of our previous concerns, the three Administration
officials on the Commission -- Marcia Hale, Secretary Riley, and Administrator Browner --
will oppose the report and are urging other members to oppose it. The decision to oppose the
report was difficult; the vote is likely to be close and partisan. Governor Winter may call
you between now and Tuesday to discuss the report.
II. DISCUSSION
Background
The Unfunded Mandates Reform Act directed ACIR to "review the role of Federal
mandates in intergovernmental relations," including establishing a framework and
measurement tools for evaluating mandates and identifying specific mandates that should be
addressed. ACIR circulated a draft report last spring. On March 1, 1996, Marcia Hale
wrote to Governor Winter stating the Administration's strong objections to the report. The
draft report: (1) did little to further understanding of fundamental questions such as how to
measure the costs and benefits of mandates or how state mandates affect local governments;
(2) presented one-sided, misleading analyses of 14 Federal health, safety, environmental,
worker protection, and civil rights laws and recommended unacceptable changes to most of
these laws; and (3) failed in its analyses to consider the views of or effects on working men
and women as directed by Congress.
Reasons for Opposing Report
The new report still fails to respond to the broad questions the Congress posed to
ACIR about unfunded mandates. It remains a one-sided report that in places inaccurately
characterizes requirements of current statutes and our approach to implementing them. The
final draft recommends more moderate but still unacceptable statutory changes to provide
relief to state and local governments while failing to adequately consider the effect of those
changes on citizens and the environment. For example, the report proposes to:
o
Amend the Individuals with Disabilities Education Act and significantly increase
Federal funding (disability and civil rights groups oppose this recommendation; we
have argued that civil rights statutes are exempt from consideration by ACIR);
o
Amend Davis Bacon-related laws (requiring prevailing wages be paid to employees
under certain federally-funded contracts) to consider exempting projects in which
federal participation is a lower percentage of total project costs (labor opposes).
o
Amend the Fair Labor Standards Act to allow state policies to be consistent with
either with current law or with comparable policies that currently apply to the Federal
government only (labor groups oppose);
()
Amend the Clean Water Act to allow EPA to extend compliance deadlines on a case-
by-case basis (environmental groups oppose);
The report also:
O
recommends a commission study laws that provide private rights of action against
state and local governments before Congress reauthorizes any existing statutes (e.g.
environmental laws) with such provisions or enacts any new statutes with such
language (labor, environmental, and civil rights groups oppose); and
o
to mitigate what ACIR characterizes as costly mandates, recommends increased
Federal spending and/or technical assistance for 6 statutes and recommends new
Federal bureaucratic structures to assist states.
It was our hope that ACIR would provide a context in which to consider ways to
further address state and local governments' concerns while maintaining our commitment to
national objectives. We recognize that a vote against the report could be viewed as a vote
against the states and for "unfunded mandates." We nevertheless fecl that the report presents
a one-sided, fundamentally flawed analyses and that we should not support it.
You have a strong record on unfunded mandates. You signed Executive Order 12875
during your first year in office to ensure that new regulations do not place undue burdens on
states and communities. In March of 1995, you signed the Unfunded Mandates Reform Act.
In March of this year we reported to Congress on the significant progress Federal agencies
have made in implementing the Act. The Administration has also worked cooperatively with
state and local governments to help them take full advantage of the flexibility that already
exists in many Federal statutes. As ACIR concludes its work, we will work to ensure that
your record and our reasons for opposing the Commission's report are well understood.
THE WHITE HOUSE
WASHINGTON
July 3, 1996
The Honorable William F. Winter
Chairman
U.S. Advisory Commission on
Intergovernmental Relations
800 K Street, NW
Suite 450, South Building
Washington, DC 20575
Dear Governor Winter:
Thank you for sharing with me a revised draft of the Advisory Commission on
Intergovernmental Relations (ACIR) Report: The Role of Federal Mandates in
Intergovernmental Relations. Although the draft has improved, the revisions to it have not
addressed some of the Administration's fundamental concerns articulated in my March 1, 1996
letter to you (attached). The report still fails to respond to the broad questions the Congress
posed to ACIR about unfunded mandates, and instead recommends statutory changes without
adequately considering the effect of those changes on citizens and the environment.
Regrettably, the Administration cannot endorse the draft report.
As you know, the Clinton Administration has taken action on several fronts to address
state and local government concerns about unfunded mandates. The President signed
Executive Order 12875 during his first year in office to ensure that new regulations do not
place undue burdens on states and communities. In March of 1995, he signed the Unfunded
Mandates Reform Act. In March of this year we reported to Congress on the significant
progress Federal agencies have made in implementing the Act. The Administration has also
worked cooperatively with state and local governments to help them take full advantage of
the flexibility that already exists in many Federal statutes.
It was our hope that ACIR would provide a context in which to consider ways to
further address state and local governments' concerns while maintaining our commitment to
national objectives. As you know, the Unfunded Mandates Reform Act directs ACIR to
"review the role of Federal mandates in intergovernmental relations," including establishing a
framework and measurement tools for evaluating mandates, identifying specific mandates that
should be addressed based on that framework, and investigating the role of unfunded state
mandates on local governments. Congress also directed ACIR to consider the views of and
the impact on working men and women in evaluating mandates.
ACIR was unable to focus its limited resources in a way that would fulfill these
objectives. As a result, we find that ACIR's recommendations do not reflect a balanced or
careful consideration of the issues. The report captures states' and local governments'
concerns about certain Federal laws but, as acknowledged in the report (p. 33), it does not
reflect the views of the working men and women who benefit from these laws.
For example, the report discusses the costs to states and local governments, but not
the benefits to the public, of citizen suit provisions. The report calls for a study of laws that
provide private rights of action against state and local governments which is appropriate, but
the recommendation goes on to state that pending conclusion of the study no new citizen suit
provisions should be enacted nor any reauthorized nor should any statutes with such language
be reauthorized (p. 7). The Administration cannot support this approach. Citizen suits have
proved highly beneficial in ensuring Federal statutes are implemented as intended by
Congress.
Further, the report inappropriately reviews a disability civil rights statute -- the
Individuals with Disabilities Education Act (IDEA). This and other civil rights statutes do
not fall within the scope of the Unfunded Mandates Reform Act. The Administration
disagrees with the report's conclusion to the contrary.
Additionally, the report's recommendations have potentially significant adverse budget
implications. The report recommends complex new Federal bureaucratic structures and calls
for increased spending or technical assistance under six statutes. Although the Administration
has supported increased aid to states in implementing Federal laws where appropriate, the
Administration is concerned about the open-ended nature of these recommendations.
As you know, the Administration commented extensively on the previous draft ACIR
report. We appreciate the Commission's hard work in making revisions to the draft that
incorporate many of our comments. Nevertheless, we regrettably cannot support the current
draft for the reasons outlined above. Please contact me if you would like to discuss this issue
further.
Sincerely,
Marcia
Marcia L. Hale
Assistant to the President and Director for
Intergovernmental Affairs
Attachment
cc: ACIR Commission Members
07 19/96 FRI 08:21 FAX
002
OF
UNITED STATES DEPARTMENT OF EDUCATION
LATER STATES of AMERICA
THE SECRETARY
July 5, 1996
William E. Davis
Executive Director
Advisory Council on Governmental Relations
South Building, Suite 450
800 K Street, NW
Washington, DC 20575
Dear Director Davis:
I am responding to your memorandum of June 26 concerning the
confidential draft of the final ACIR report on federal mandates,
undertaken in accordance with Title III of the Unfunded Mandates
Reform Act. I regret to inform you that after carefully
reviewing the draft as it pertains to the responsibilities of the
Department of Education, I cannot approve the final report in its
current form. These are my major concerns:
(1) The draft report (page 7) presents for the first time a
one-sided argument in favor of a study of the "constitutional and
intergovernmental issues raised by laws authorizing private
rights of action against state and local governments," and then
goes on to recommend that such a study should be completed "prior
to
any reauthorizations of existing statutes with such
language. If I cannot agree to the postponement of the
reauthorization of the Individuals with Disabilities Education
Act (IDEA) until such a study is completed. We have come too far
in the reauthorization of IDEA -- which passed the House on June
10 under suspension of the rules and is pending floor
consideration in the Senate -- to accept such a recommendation
and the likelihood of long-term delay of the important reforms
and improvements that the Department, State and local providers,
and parents are seeking. Indeed, as you know, many of those
reforms are fully consistent with ACIR's recommendations
regarding the reduction of administrative burdens and the need
for mediation and alternative dispute resolution processes in
IDEA.
(2) The draft report's discussion of IDEA is unacceptable
for several reasons. First, IDEA should not be included in the
report. IDEA, in essence, is a civil rights statute and should
not be considered as another federal program for purposes of the
report. I am pleased to see that discussion of the Americans
with Disabilities Act has been dropped from the draft report and
believe that IDEA should be deleted as well.
600 INDEPENDENCE AVE., S.W. WASHINGTON. D.C. 20202-0100
Our mission IS 10 ensure equal access to education and to promote educational excellence throughout the Nation.
07/19/96 FRI 08:21 FAX
003
Page 2 - William E. Davis
Second, I cannot support the recommendation that funding for
the IDEA Grants to States program be suddenly increased -- over
five-fold -- to 40 per cent of the excess costs of special
education. I am proud that the President's fiscal year 1997
budget request for Grants to States under IDEA would provide
fully $279 million more than the amount provided by Congress for
fiscal year 1996 and would reverse the trend of declining Federal
participation in the education of students with disabilities. I
am sure that we agree the President's budget is a step in the
right direction, but I must oppose funding recommendations that
are so unrealistic.
Finally, although I appreciate the efforts that have been
made in the draft report to acknowledge the accomplishments of
IDEA over the years as well as the Department's wide consultation
with State and local providers, parents, and other interested
parties in developing its reauthorization and reform proposal,
the overall tone of the discussion of IDEA remains negative and
slanted. This is particularly unfortunate in light of the fact
that, apart from the reference to the 40 per cent funding level,
the recommendations and the Department's reform and
reauthorization goals are remarkably consistent.
In conclusion, it is unfortunate that we have been unable to
reach agreement on the current draft. I know that you and your
staff -- as well as members of the Department -- have worked hard
to find a mutually satisfactory result with respect to IDEA. I
regret that it does not seem possible to succeed in the few
remaining weeks.
Yours sincerely,
Dick
Richard W. Riley
3002
of
17
?
:-
15
ADVISORY COMMISSION ON INTERGOVERNMENTAL AFFAIRS (ACIR) MANDATES
REPORT: LABOR ISSUES
Summary of DOL Concerns: ACIR continues 10 ignore the
Congressional directive :: consider the impact of state and local
mandades on working men and women. In the report.
The recommendations concerning the Fair Labor Standards
Act FLSA demonstrate = LECK :: inderstanding of the requirements
placed DI. Federal Agencies DM Title E USC 35 the recommendation
would result in additional surdens 21. Ittal and state government.
The comments related :: the Family and Medical Leave
Not FMLA disregard several relevant findings of the Commission on
Family and Medical Leave.
*Reconmendations related :: une Incupational Resion and Safety
Acc CSHA call upon the Federal dovernment to take on casic state
and loss. government 300 COMMENTS related = OSHA
standards are unsupported.
The Javis Bacon reconmendations would be deuntmental, =
Casic worker protection and involucate 1.16 application
II David Bacon requirements
Fair Labor Standards Act
ACIR Recommendation: Retain state and local government coverage
under the Fair Labor Standards Act, but amend the Act to allow
state and local governments compliance with either the policies of
the Act or the comparable policies of the federal government under
Title S. USC.
DOL Response:
*ACIR implies that Federal agencies have 3 lesser standard to meet
in terms of employment standards; however, federal agencies are
required = comply with both FLSA and Title 5. If the
recommendation is = require the same standards for state and local
government employees as are required for Federal employees, the
effect would be to place additional regulatory requirements on
state and local governments which presently do not exist
*ACIR ignores the steps which both Congress and the Labor
Department have taken 17. order to address particular problems
related to state and local governments. For example:
003/005
there are special overtime standards for law enforcement and
firefighting personnel and "comp time" provisions.
special accommodations were included in regulation changes
11. 1392 that allow state and local governments to continue to claim
exemption from overtime for their executive, administrative and
professional employees despits the fact that they account for leave
75 an hour-for-hour basis or that they have systems requiring them
20 TaKe partial-day deductions from pay when accrued leave has been
exhausted
the Department of Labor investigates state and local
governments essentually CT. : complaint-only basis.
the Department :: Labor will not file suit against 3: state
_ : Local government = entorce the FLSA unless at least 31-days
avance WILIDER 100100 DAS been given that the pay practices are in
violation
Family and Medical Leave
USE
Peter: STRIE and local coverage inder the
Family and Medical Aut
DOL Венродае:
While ACIR recommends continued coverage for state and local
employees the ACIR reports states that the Family and Medical
Leave Commission's study did not survey public agencies The
report however fails = point out that the Employee Survey was a
nationally representative sample of public and private sector
workers.
I- addition, a separate survey of state family and medical Leave
policies specifically asked whether public agencies had encountered
difficulties :- applying the EMLA special rules for employees of
schools. For states that had their own. family or medical leave
provisions local school administrators state that they encountered
no problems in reporting = both state and federal enforcement
entities
The ACIR report suggests that Federal agencies have more
flexibility then state and local governments in the implementation
of FMLA; nowever, unlike the Federal government state and local
governments have the authority DC:
deny restoration to certain highly compensated individuals.
require certifications by health care provider 16 the
employee claims they are unable to return = work because of a
17:16
8
001 005
specified condition.
T
entitled to recover premiums paid for maintaining health
benefits coverage during the period of unpaid leave unless the
employees fails to return to work for reasons related to health or
other circumstances beyond the control of the employee.
Occupational Safety and Health Act
ACIR Recommendation: Make no changes :- Occupational Safety and
Health Act OSHA) language regarding state and local government
compliance but increase federal funding sources for state and
Local government training and technical Assistance on OSHA
regulrements 63 well as funding for implementation of requirements.
DOL Response:
Sade workplaces are = fundamental coligation CL 311 employers and
770 Federal government should not DE expected : finance safe work
places for state and local governments.
The ACIP recort states that there 13 lack of credible
information on the rationale for or the scientific basis of many
OSHA standards and requirements. It is irresponsible for ACIR to
make this statement and to offer no documentation or ever. one
regulation or standard as an example.
Dayis-Bacon Related Acts
ACIR Recorrendation: Amend the related laws to exempt projects
below as higher dollar threshold than exists in most laws and
consider exempting projects in which federal participation 1S = Low
percentage of total project costs.
DOI Response:
The Administration has supported bi-partisan reform legislation 12
the House and Senate to increase dollar thresholds and to reduce
the level of paperwork and record keeping requirements.
*The ACIR proposal of adding the percentage threshold = the Davis-
Bacon requirements would be detrimental to fundamental worker wage
protection In addition, it would further complicate the
administration of Davis-Bacon as it would increase the level of
uncertainty as to when and which projects would be subject to
N
005 00
6 17:17
Davis-Bacon.
*The ACIR report suggests that there is often È conflict between
Federal Davis Bacon and state prevailing wage laws. This conflict
is "inappropriately detrimental = intergovernmental comity."
Without specific examples :: 1S.. difficult = rebut the ACIR
assertion, except 10 note that the Davis Bacon statute 19 3
longstanding Federal law with a simple threshold mechanism. :-
addition, most state prevailing wage statutes were Written =
complement and build upon the Federal statute.
Payme
EXECUTIVE OFFICE OF THE PRESIDENT
17-Jul-1996 06:41pm
TO:
Marcia L. Hale
FROM:
Jennifer L. Klein
Domestic Policy Council
CC:
Christopher C. Jennings
SUBJECT: ACIR Report
You had asked for our view on the Medicaid problems in the ACIR
report. The major problem is that the report recommends that a
study be commissioned to examine private rights of action. Until
the study is completed, the report recommends a moratorium on new
laws and reauthorization of existing laws that grant private
rights of action against state and local governments. We have
argued throughout the Medicaid debate that a right of action by
an individual heard in federal court is an essential part of the
Medicaid guarantee. Therefore, we would oppose the study and the
moratorium.
Please let me know if you have any additional questions.
Cather
Copy: Duy
Tele: ACUR
6-6220
TALKING POINTS ON ACIR DRAFT REPORT
Although the draft has improved, the revisions have not
addressed the Administration's fundamental concerns.
We're unhappy with the overall approach and oppose many of
the specific policy recommendations.
General Problems
The report fails to respond to broad questions posed by
Congress to ACIR, such as: how do state mandates affect
local governments? How should we measure the costs and
benefits of mandates?
Report is also very one-sided. It focuses on states' and
governments' concerns but fails to consider the views of and
impact on working men and women in evaluating mandates as
directed by Congress.
Recommends increased technical assistance and financial
assistance under 6 statutes (potential budget buster).
Objections to Recommended Statutory Changes
Includes Individuals with Disabilities Education Act (IDEA)
-- a disability civil rights statute exempt from
consideration under the Unfunded Mandates Reform Act.
Recommends Fed. Government fund 40% of implementation costs.
Recommends amending the Fair Labor Standards Act to allow
state and local governments to comply with rules that apply
to the Federal government rather than the policies that
govern private industry. (Labor will oppose)
Recommends extending Clean Water Act deadlines.
(environmentalists will oppose)
Recommends that no new or existing citizen suit provisions
be enacted or reauthorized until a commission studies
citizen suits. Citizen suit provisions have been highly
effective in ensuring Federal laws -- particularly
environmental and civil rights laws -- are fully
implemented.
Recommends amending Davis Bacon-related laws to set higher
dollar threshold and suggests considering exempting projects
with a low percentage of Federal funds. (labor will oppose)
Recommends weakening drug and alcohol testing provisions of
the Transportation Employee Testing Act.
gel To: Marcia L. Hale
Date: 7/18/96 Time: 19:00:25
Page 1 of 4
REVIEW OF ACIR JUNE 25 FEDERAL MANDATES REPORT:
A REPORT THAT SHOULD BE OPPOSED
Citizens for Sensible Safeguards, a coalition of more than 300 national organizations, has obtained a
June 25, 1996 draft of an ACIR report on federal mandates. While CSS has not had time to fully
evaluate the draft, it has drawn preliminary conclusions.
CSS strongly opposes the report and actively urges a negative vote by the ACIR Commission
Members, which are to meet on July 23, 1996. The June 25 draft demonstrates that the ACIR staff
have lost nearly all objectivity in researching and writing a final report. Furthermore, the ACIR efforts
to develop a final report have not met the statutory requirements of the Unfunded Mandates Reform
Act of 1995 (P.L 104-4) with respect to addressing certain subjects (Sec. 302(a)(3)) or holding more
than one hearing on the preliminary report (Sec. 302(c)(2)).
ACIR issued a preliminary report in January, 1996 to seek public input. The preliminary report was
roundly criticized by the public interest community, along with unions representing working men and
women. CSS issued a report on March 5. 1996, called Shirking Responsibility. that was highly
critical of the ACIR preliminary report. Despite the firestorm of protest, the June 25 draft has
changed only in a very modest manner.
Our preliminary review indicates two types of problems with the June 25 draft report. The first type
deals with the recommendations dealing with specific mandates. Of the 13 specific
recommendations, CSS opposes all but four. We oppose some combination of the
recommendations and supporting text for the Fair Labor Standards Act. Occupational Safety and
Health Act, Davis-Bacon related acts, Individuals with Disabilities Education Act, Endangered
Species Act, Clean Water Act, Safe Drinking Water Act, Clean Air Act, and Medicaid Boren
Amendment. More detail on the CSS response to specific ACIR recommendations will be developed.
The second type of problems concern the tone of the report and the biased nature of the introductory
and conclusionary sections. Before identifying general problems, it should be noted that the ACIR
June 25 draft does not comply with the Unfunded Mandates Reform Act. The Act requires ACIR to
"investigate and review the role of Federal mandates in intergovernmental relations and their impact
on State, local, tribal, and Federal government objectives and responsibilities,
and consider views
of and the impact on working men and women on those same matters." The June 25 report does not
address the views of working men and women.
General Problems
1.
The report does not address the tension that may exist between a basic right, as
perceived by a citizen, and a mandate, as perceived by a state or local government;
ACIR wrongly includes civil and constitutional rights programs as "federal
mandates;" and ACIR should advise Congress on the need to narrow the definition of
"federal mandate" to not include voluntary programs. During the single ACIR public
hearing,
witnesses repeatedly testified that what is perceived to be a mandate by state and local
governments is a critical right to citizens that live in that state. The report fails to address this
dilemma, and is skewed heavily to the viewpoint of state and local governments, instead of
the public. For example, safe drinking water is perceived by local governments as a costly
mandate imposed upon them, whereas citizens view it as a basic right.
engel To: Marcia L. Hale
Date: 7/18/96 Time: 19:01:47
Page 2 of 4
The Unfunded Mandates Reform Act is very clear that laws and regulations enforcing
constitutional rights and prohibiting discrimination are not be considered a federal mandate.¹
Yet ACIR persists in including such laws in its analysis. For example, the ACIR makes
recommendations on the Individuals with Disabilities Education Act (IDEA) even though the
law IS designed to prohibit discrimination and the courts have ruled that a free, appropriate
public education is a constitutional right. Additionally, the ACIR raises study of more
"mandates," such as the "Motor Voter" law which is intended to enforce the constitutional
right to vote.
Even though Sec. 305 of the Unfunded Mandates Reform Act defines "Federal mandate"
broadly, it is irresponsible of ACIR not to raise the need for Congress to narrow the definition.
Federal programs in which a state or local government or any other recipient voluntarily
chooses to participate in, should not be considered a mandate. A number of court decisions
have concluded that the federal government has the right to impose restrictions on recipients
of federal funds as a condition of receipt of those funds (see, for example, Rust V. Sullivan).
By including laws such as the Occupational Safety and Health Act or Medicaid, in which
states choose to voluntarily participate, the ACIR June 25 draft presents a false perception of
intergovernmental issues.
2.
The ACIR draft is devoid of any reference to the benefits of federal laws. The June 25
draft emphasizes intergovernmental difficulties with implementing federal mandates. but
does not discuss the benefits derived from these public protections. This type of analysis
significantly biases the report, adding to its credibility problems.
3.
The ACIR would have us believe that state and local governments should be treated
differently than other regulated entities. Of course there are times when the federal
government should work in partnership with state and local governments in designing and
implementing initiatives, such as information data collection efforts or service integration
activities. However, state and local governments are also employers and polluters. They are
no different than any other regulated entity in this respect. (In fact, that is why the U.S.
Congress has made federal laws that apply to other Americans also apply to itself.)
Providing preferential treatment to state and local governments unfairly tilts the regulatory
playing field. Suddenly, employees of state and local governments may receive fewer
workplace protections than those workers in the private sector.
Already state and local governments are not required to comply with important federal
safeguards. For example, one of the most successful environmental laws, the Emergency
Planning and Community Right-to-Know Act, which requires annual disclosure of toxic
chemicals to the environment, does not apply to state and local governments, but does apply
to federal agencies and many businesses. Instead of providing preferential treatment for
state and local governments, the ACIR should be concentrating on where gaps in public
I
The definition of "federal mandate" IS guided by Sec. 3 of the Act. However, Sec. 305, which IS in title
III and applies to the ACIR study, overrides Sec. 3 and provides a different definition of "federal mandate"
that includes an "enforceable duty upon State. local. or tribal governments including a condition of Federal
assistance or a duty arising from participation in a voluntary Federal program." Nonetheless, the definition
in Sec. 305 does not override the seven exclusions to the Act listed in Sec. 4. Sec. 4 states that the Act
shall not apply to any law or regulation that "(1) enforces constitutional rights of individuals: [or] (2)
establishes or enforces any statutory rights that prohibit discrimination on the basis on race, color, religion,
sex, national origin, age, handicap, or disability."
-2-
-
ngel To: Marcia L. Hale
Date: 7/18/96 Time: 19:03:08
Page 3 of 4
safeguards exist and offering recommendations on how to address the unmet need without
imposing unnecessary burdens.
4.
The ACIR does not describe why the federal protections were developed in the first
place. The reason federal law is created is to address a felt need -- one that is openly
debated and chronicled. The ACIR June 25 draft does not describe why "federal mandates"
are created in the first place. In many cases, it is because state and local governments are
not addressing the problem. In other cases, it is to develop uniformity throughout the country
to ensure that citizens, no matter where they live, are afforded equal protection. Once again,
the ACIR bias makes the report sound as though it has become a trade association for state
and local governments instead of applying an analytical framework to a difficult issue.
5.
The ACIR draft has enormous credibility problems beyond those identified above. The
June 25 draft is filled with inaccuracies that makes it difficult to give the recommendations
any credibility. For example, on page 4 of the draft, it states that "ACIR was unable to review
more than the 13 selected mandates" On its face this is inaccurate since the preliminary
report reviewed 14, not 13, mandates.
The description on page 5 dealing with the public comments and testimony that ACIR
received on the preliminary report is woefully inadequate. There is no mention about the
types of comments that were received and that the preponderance of them were in opposition
to ACIR's preliminary report.
Probably most extreme is the bold conclusionary statement on page 30: "The [ACIR] review
of existing mandates has already contributed positively to improvements in intergovernmental
relations. Advocacy groups on all sides of various mandate issues have started to rethink
their positions, to better articulate their concerns, and to discuss face-to-face with one
another." This is simply a self-serving statement that defies the fact that CSS continues to
publicly oppose the ACIR actions, not to rethink our positions. There has been no face-to-
face communication with the ACIR staff, nor initiative on their part to engage the coalition on
our views. ACIR may be correct in stating that it has helped CSS to "better articulate their
concerns," but solely because of the outrageous actions taken by this governmentai agency
and the lack of empirical evidence to justify its conclusions.
6.
The process for developing a final report is inadequate and inappropriate. Federal
agencies received the ACIR report no sooner than June 26 and were asked to submit
comments to the ACIR by July 3. Thus, most agencies had less than one week to react to
the June 25 draft -- and at a time that was nearing a federal holiday. This is the same
approach the ACIR took in releasing it preliminary report -- allowing agency staff to review the
report during the holiday season, which also happened to be during a government shutdown.
The public also has not been adequately included in this process. We criticized the ACIR for
initially announcing that a $400 per person conference would serve the statutory requirement
for public hearings. ACIR relented and held one public hearing. The statute, however,
requires ACIR to hold "public hearings" -- that is. more than one. This has not been done.
During the public hearing Governor Winter, the chair of ACIR, made several statements
about public notification of future ACIR actions on this subject. OMB Watch followed up with
a letter to the Governor for clarification on several points. The ACIR responded in a letter that
stated that future meetings regarding the development of the final report would be posted in
the Congressional Monitor, a private publication. We encouraged them to make such
-3-
engel To: Marcia L. Hale
Date: 7/18/96 Time: 19:04:26
Page 1 of 4
announcements in the Federal Register in addition to the private publication. It was not until
July 10, after CSS complained that there had been no announcement of a July 23 meeting,
that ACIR published in the Federal Register an announcement of the meeting to consider the
draft report. Thus, the public had less than two weeks notice about the meeting. We find this
unacceptable.
7.
The ACIR recommendation "to restructure federal laws to restore comity between the
governments" needs clarification, and the recommendations to conduct further
studies must be deleted. On page 2 of the June 25 draft, it states: "ACIR recommends that
mandate relief studies, and related efforts focus on how to restructure federal laws and
restore comity between the governments in the American federal system, not on the
elimination or repeal of federal laws." What CSS opposed in the preliminary report was the
notion of exempting state and local governments with compliance of federal laws and
protections, thereby creating what CSS called "a crazy quilt of public protections for some,
but not for others." ACIR never proposed eliminating or repealing federal laws, just allowing
state and local government to be excluded from complying This general ACIR
recommendation must affirmatively state that ACIR is not recommending a policy of
exempting state and local governments from compliance with federal laws and protections.
Additionally, the June 25 draft recommends a review of "additional existing federal
mandates," further study of "laws authorizing private right-of-action against state and local
governments," and a review of the Resource Conservation Recovery Act, Superfund,
Medicaid, job training services, and "Motor Voter" requirements is needed "as soon as
possible." Given the sloppy, one-sided nature of the June 25 draft, we believe these ACIR
recommendations should be dropped. On what basis IS ACIR mentioning RCRA, Superfund.
Medicaid, job training, and Motor Voter Motor Voter, for example, has been subjected to
court review and has been upheld. Congress has an appropriate means for reviewing these
laws and will debate them in the public eye when up they are up for reauthorization.
CSS strongly objects to the conclusion on page 7 that a study be commissioned to examine
issues raised by laws authorizing private rights-of-action. The private right-of-action is the
only way individuals can enforce their rights under the law. Rights that are not enforceable
are meaningless. We also strongly oppose the recommendation that there should be a
moratorium on new laws and reauthorization of existing laws that grant private rights-of-
action against state and local governments until this study be completed. Such
recommendations have an impact on a wide range of laws, including the Americans with
Disabilities Act and most entitlement programs. This section of the ACIR June 25 draft
should be dropped.
-4-
002/004
06/25/96
09:17
THE WHITE HOUSE
WASHINGTON
June 12, 1996
MEMORANDUM TO LEON PANETTA
FROM:
Marcia HaleW
Carol Rasco
Sally Katzen
atte
SUBJECT: Advisory Commission on Intergovernmental Relations (ACIR) Draft Report
Governor Winter, ACIR's Chairman, has asked Marcia Hale to confidentially review a
new draft of ACIR's unfunded mandates report. Although this draft addresses some of our
previous concerns and is apparently acceptable to Governor Winter and possibly to other
Democratic Commission members, we recommend that the three Administration officials on
the Commission - Marcia Hale, Secretary Riley, and Administrator Browner - oppose the
report and work to ensure other Democratic members oppose it. This memo seeks your
approval of this approach.
Background
0
ACIR's Congressional Charge - The Unfunded Mandates Reform Act directs ACIR
to "review the role of Federal mandates in intergovernmental relations," including
establishing a framework and measurement tools for evaluating mandates and
identifying specific mandates that should be addressed.
Previous Administration Position - In January, the Commission voted to release a
draft-report for public comment. Federal Agencies commented extensively on the
draft. In addition, on March 1, 1996 Marcia Hale wrote to Governor Winter stating
the Administration's strong objections to the report's analytic approach and policy
conclusions (letter attached). The letter indicated the draft report:
did not adequately speak to ACIR's Congressional charge to establish a broad
conceptual framework for considering individual mandates;
did little to further consensus on fundamental questions such as how to
measure the costs and benefits of mandates;
presented misleading analyses of 14 Federal health, safety, environmental,
worker protection, and civil rights laws and recommended unacceptable
changes to most of these laws;
failed in its analyses to consider the views of or effects on working men and
06/25/96
09:17
003/004
women as directed by Congress; and
0
went beyond the scope of the Act by suggesting changes to disability civil
rights statutes excluded by the Act.
Revised Draft
o
Content -- The new draft, although less egregious in its recommendations (attached),
contains the same fundamental flaws. For example, the report:
still largely fails to consider benefits (the final page acknowledges ACIR did
not consider the benefits of mandates on working men and women);
to mitigate what ACIR characterizes as costly mandates, recommends increased
Federal spending and/or technical assistance for 7 statutes - -- Occupational
Safety and Health Act (OSHA), Omnibus Transportation Employee Testing
Act (drug and alcohol testing), Clean Water Act (CWA), Individuals with
Disabilities Education Act (IDEA), Americans with Disabilities Act (ADA),
Safe Drinking Water Act (SDWA), and Clean Air Act (CAA) -- and
recommends new bureaucratic structures to assist states;
o
argues (unconvincingly) that two disability civil rights statutes -- ADA and
IDEA -- are within the Commission's scope and recommends unacceptable
changes to ADA;
0
proposes more moderate but still problematic changes to 5 statutes -- the Fair
Labor Standards Act (FLSA), Transportation Employee Testing Act, CWA,
ADA, and Davis-Bacon related acts; and,
recommends a study of laws that provide private rights of action against state
and local governments and recommends that the study be concluded prior to
reauthorizing any existing statutes (e.g. environmental laws) with such
provisions or enacting new statutes with such language.
o
Status Governor Winter is ready to ask Commissioners to vote to approve the
report. The Commission sunsets at the end of this fiscal year, is short on funds, and is
eager to conclude its work.
Recommendation
Administration officials should oppose the revised draft and urge other Democratic
members to oppose it.
pros o
This document is not good government and is not consistent with the
Administration's message on unfunded mandates. It is a one-sided
presentation of a complicated issue that stresses costs and calls for more
06/25/96 09:18
004/004
Federal spending.
0
We are being urged by labor, environmental and disability groups to repudiate
the report; fiscal conservatives could also criticize us for supporting it.
o
The Administration already has a strong record on unfunded mandates. We've
issued executive orders and taken strong actions to implement the Unfunded
Mandates Reform Act. We've also proposed changes to address certain specific
burdens identified in the report (e.g. reporting requirements in IDEA) and have
provided enhanced technical assistance and flexibility under numerous statutes.
cons 0
Some Democratic Commission members may support the report, isolating
Admiristration Democrats.
0
We could be criticized for not acting aggressively to address the burden of
unfunded mandates.
o
We could be criticized as being inflexible given improvements in this draft.
Attachments
STATEMENT OF SALLY KATZEN
ADMINISTRATOR
OFFICE OF INFORMATION AND REGULATORY AFFAIRS
OFFICE OF MANAGEMENT AND BUDGET
BEFORE THE
SUBCOMMITTEE ON HUMAN RESOURCES AND INTERGOVERNMENTAL
AFFAIRS
COMMITTEE ON GOVERNMENTAL REFORM AND OVERSIGHT
UNITED STATES HOUSE OF REPRESENTATIVES
March 22, 1996
Good morning Mr. Chairman and Members of the Committee.
I am Sally Katzen, the Administrator of the Office of Information and Regulatory Affairs within
the Office of Management and Budget. OIRA has specified statutory responsibilities and is
charged under various Executive Orders with the task of coordinating and reviewing Executive
Branch regulatory policy matters.
I appreciate the opportunity to testify on unfunded Federal mandates on this, the first anniversary
of the signing of the Unfunded Mandates Reform Act of 1995. This is a very important piece of
legislation for the Administration, and one which President Clinton has enthusiastically supported.
The Unfunded Mandates Reform Act was a milestone that addressed deep-felt legitimate concerns
of State, local, and tribal governments about the difficulty of complying with Federal unfunded
mandates.
Background
From the inception of this Administration, the President has worked hard on issues involving the
relationship between the Federal government and State, local, and tribal governments. He
believes strongly that government cannot serve people unless there is cooperation -- a real
partnership - among all the levels of government. The difficulty of complying with Federal
mandates without additional Federal resources is something that the President experienced first
hand as Governor of Arkansas, and it is an issue that he sought to address in one of the first
Executive Orders that he signed. Specifically, on October 26, 1993, the President signed
Executive Order No. 12875, instructing Federal agencies to:
refrain from imposing nonstatutory mandates unless 1) funds are provided by the Federal
Government, or 2) the agency demonstrates to the Office of Management and Budget
(OMB) that it has consulted with State, local, and tribal representatives, heard their
concerns, accommodated them to the extent possible, and explained why they could not
accommodate any remaining concerns; and
develop an effective process of meaningful and timely communication with State, local,
and tribal officials when developing regulatory proposals that contain significant
nonstatutory unfunded mandates.
While Agency compliance with Executive Order 12875 led to significant improvements in how
agencies developed regulations having an intergovernmental impact, it could only affect non-
statutory unfunded mandates. Yet, a number of -- indeed most -- mandates result from laws
under which the agencies have little, if any, discretion. This led to the strong bipartisan support
for the Unfunded Mandates Reform Act.
Title I of this Act addresses the legislative branch, and the processes that it should follow before
enactment of any statutory unfunded mandates. Title I went into effect this past October, and it is
- 2 -
too early to evaluate its effectiveness. On the other hand, Title II, which addresses the Executive
Branch, went into effect upon enactment, March 22, 1995. Title II built on Executive Order
12875, by establishing consultative and analytical requirements for agencies in developing rules.
It also includes a requirement that OMB report to Congress on agency compliance with Title II;
OMB filed its report today and I am submitting a copy along with my testimony.
Finally, Title III of the Act called for a detailed study on issues by the Advisory Commission on
Intergovernmental Relations (ACIR). Many witnesses today are addressing this issue, and
therefore let me start there and then speak to agency compliance with Title II.
ACIR Study
Title III asked ACIR to report on a variety of issues, including:
What is the role of Federal mandates in intergovernmental relations?
What is the impact of unfunded mandates on the competitive balance between State, local,
and tribal governments and the private sector?
How do unfunded State mandates affect local governments?
How can the Federal government best provide flexibility to its intergovernmental partners?
How can the Federal government best reconcile existing and inconsistent mandates?
How do we properly define and measure the costs and benefits of Federal mandates?
The reason for addressing these critical questions was a felt need to provide a context --
specifically, an informed analysis for this debate. As someone who was involved in the
development of the legislation, it was clear to me that the answers to these questions are neither
readily apparent nor easily attainable. Congress set a formidable research task for ACIR -- to take
a conceptual as well as practical look at the scope and size of unfunded mandates in this country.
- 3 -
ACIR issued a preliminary staff draft for public review and comment on January 5, 1996. We
raised serious concerns with ACIR's staff draft report in a March 1 letter from Marcia Hale,
Assistant to the President for Intergovernmental Affairs to Governor Winter, the Commission's
Chairman (I am attaching a copy of this letter to my testimony). Given Congress' decision to
terminate the Commission this year, as well as the limited amount of funding to carry out the
study and proceed to shut down, it is not surprising that ACIR's staff draft report did not meet
the ambitious Congressional charge.
In the Administration's letter, we noted that the staff draft did not address the legislative request
in a number of ways, including:
it does not develop a sufficient conceptual framework for consideration of unfunded
mandates;
it does not address how State mandates affect local governments;
it does not address how we should measure the costs and benefits of mandates; and
it fails to consider the positive impact on working men and women of federal mandates.
In addition, we noted it provides only cursory and often misleading analyses of 14 Federal health,
safety, environmental, and labor laws. Several Federal agencies that implement those laws
submitted letters directly to ACIR. My colleagues on the panel will discuss the specific statutes
within their jurisdiction.
We understand that ACIR received other critical constructive comments, and will likely receive
more at a public hearing next week. The Administration looks forward to working with ACIR
staff to produce a revised report for Commission consideration, which we expect will reflect these
important comments and concerns.
- 4 -
OMB Report
Today is not only the first anniversary of the Act. Not coincidentally, it is the date specified in the
legislation for our report to Congress on agency compliance with Title II of the Act, called for by
Section 208.
This report has given us the opportunity to review Administration activities since passage of the
Act. As the report sets forth, agencies have given serious thought to, and established real
processes for, intergovernmental consultation involving both unfunded mandates as defined by the
Act and issues affecting State, local, and tribal governments generally. These consultation
processes built on Director Rivlin's September 21, 1995, guidance to agencies called for by
Section 204 of Title II, which discussed several general themes that agencies should consider as
they engage in discussions with their intergovernmental partners.
intergovernmental consultations should take place as early as possible, beginning before
issuance of a proposed rule and continuing through the final rule stage, and should be
integrated explicitly into the rulemaking process;
agencies should consult with a wide variety of State, local, and tribal officials.
the scope of consultation will necessarily vary with the cost and significance of the
mandate being considered - effective consultation, however, requires significant and
sustained attention from all who participate, as well as a degree of trust to allow for frank
discussion, focus on key priorities, and clear and unambiguous communication; and
agencies should seek out State, local, and tribal views on costs, benefits, risks, and
alternative methods of compliance, as well as whether the Federal rule will harmonize with
and not duplicate similar laws in other levels of government.
- 5 -
The consultation processes that have been established in light of these general lessons are quite
varied. As our report discusses, some agencies - like the Departments of Defense and State do
not generally issue regulations with intergovernmental effects. Even these agencies, however,
have committed to consultations when developing rules or considering policies or programs that
involve other levels of government.
Several other agencies -- notably, the Environmental Protection Agency and the Departments of
Education and Labor - issue many rules with intergovernmental effects and have done a superb
job in setting up effective avenues of communication with State, local, and tribal governments.
These are outlined in detail in Chapter 1 of our report.
The report demonstrates that the Administration's commitment to involve State, local, and tribal
governments as early as possible goes beyond rules covered by the Act. We take seriously our
responsibility to consult with other levels of government on all rules and significant policy or
program decisions that may affect them. Our report includes a myriad of examples where agency
activities benefitted from hearing the views of their intergovernmental partners, and incorporating
those views into their decision making.
The report also shows that these processes are not just paper-driven exercises. Two rules in the
last year met Title II's $100 million expenditure threshold for State, local, and tribal governments.
Both were promulgated by the Environmental Protection Agency. Chapter 2 of the report
contains a lengthy description of the consultative processes undertaken by the agency for these
rules, and, most importantly, demonstrates agency ascertainment of concerns and the many
changes made to accommodate those concerns.
The EPA experiences discussed in our report illustrate what the Unfunded Mandates Reform Act
is all about. Everyone should recognize that regulations have provided important benefits for
health, safety and the environment. At the same time, we must hear the concerns of our
intergovernmental partners, react to those concerns, and incorporate them into the analyses that
- 6 - -
inform our decision making so that costs to all those affected by the rule - and especially to State,
local, and tribal governments - are minimized while the benefits to all are maximized.
I appreciate the opportunity to appear here today before you, and to unveil our report. I look
forward to any comments you may have, and am happy to answer any questions at this time.
- 7 -
THE WHITE HOUSE
WASHINGTON
March 1, 1996
The Honorable William F. Winter
Chairman
U.S. Advisory Commission on
Intergovernmental Relations
800 K Street, NW
Suite 450, South Building
Washington, DC 20575
Dear Governor Winter:
I am writing to express my deep concerns about the preliminary staff draft of the
Advisery Commission on Intergovernmental Relations (ACIR) Report: The Role of Federal
Mandates in Intergovernmental Relations. The draft report fails to respond to key questions
the Congress posed to ACIR, and instead focuses on policy issues well outside of ACIR
Congressional mandate 3T aree of expertise. In addition, the draft report discusses the costs
of mandates largely without examining their benefits As & member of the Commission, I
oppose many of the specifi: recommendations in the report, and would like to work with you
and other members of ACIR to develop a more balanced report of the Commission's work.
As you know. Title III of the Unfunded Mandates Reform Act of 1995 directs ACIR
to: (1) "review the role of Federal mandates in intergovernmental relations and their impact
on State, local, tribal, and Federal government objectives and responsibilities. and their impact
on the competitive balance between State, local, and tribal governments, and the private sector
and consider views of and the impact on working men and women on those same matters;"
(2) investigate the role of unfunded State mandates on local governments; (3) make
recommendations in seven different general areas. including providing flexibility and
reconciling inconsistent mendates; and (4) identify specific mandates that should be
addressed in each of these areas. Congress also instructed the ACIR to examine measurement
and definitional issues involved in calculating total COSTS and benefits of Federal mandates.
The preliminary staff draft report does not adequately reflect this Congressional
charge. Unfortunately, the draft report focuses on the requirements of specific statutes
without establishing a sufficient framework for their consideration. The report does little to
further consensus on fundamental questions such as how state mandates affect local
governments and how we should measure the costs and benefits of mandares. Instead, it
presents cursory and often misleading analyses of 14 Federal health, safety, environmental,
worker protection, and civil rights laws. These analyses fail to consider the views of or
effects on working men and women as directed by Congress.
For example, the preliminary staff draft recommends that Congress repeal the Family
and Medical Leave Act's (FMLA) applicability to state and local governments. The Clinton
Administration opposes this recommendation. The draft report asserts that the FMLA has
"created unfunded costs related to extending medical insurance coverage to employees while
on leave, to temporary hiring of replacement workers, and to additional training and personnel
counseling activities..." The report cites no supporting evidence for this claim, however.
Further, the report does not acknowledge the substantial benefits to employers, families, and
individuals of implementing FMLA requirements. In addition, the Administration strongly
opposes the recommendations that would weaken other labor protections including proposed
changes to OSHA, the Fair Labor Standards Act and Davis-Bacon-related acts.
The preliminary staff draft also recommends several generic modifications to Federal
laws without carefully considering the consequences of such changes. For example, the draft
report proposes eliminating citizens' rights to sue state and local governments to enforce
Federal mandates The Administration strongly opposes this broad-sweeping change. Again,
the-recommendaticn is based on a consideration of costs but not of benefits. The draft report
simply asserts that citizen suits create "budgetary uncertainties and substantial legal costs"
for state and local governments. The draft report does not document or quantify these costs,
or discuss the constructive role citizen suits have played in strengthening enforcement of civil
rights. environmental, and other Federal statutes.
The draft report's proposed changes to specific environmental laws are similarly
disconcerting. The preliminary staff draft recommends -- again without adequare justification
- substantially weakening Federal environmental statutes. For example, the draft report
recommends eliminating financial aid penalties for states that fail to meet Federal air quality
sundards where such states are making a good faith efforts to comply. The Administration
opposes this proposal. As the draft report itself notes, most states did not adequately control
air pollution until strong Federal standards and enforcement mechanisms were put in place.
Now that sanctions are mandatory, states, with a few exceptions, are meeting compliance
deadlines, although sanctions have almost never been applied
Another particular concern is the report's recommendations with respect to civil rights
laws for people with disabilities -- specifically, the Americans with Disabilities Act (ADA)
and the Individuals with Disabilities Education Act (IDEA). The Administration opposes the
draft report's recommendations with respect to these laws. Since the Unfunded Mandates
Reform Act does not apply to civil rights statutes. it is inappropriate for ACTR to recommend
changes to these laws. The draft report's recommendations to eliminate a private right of
action and to reduce state and local governments' compliance obligations under these statutes
would set back our efforts to guarantee equal rights for citizens with disabilities. I would
note that both of these laws allow Federal agencies to emphasize education and voluntary
compliance as much as possible, and that this Administration has taken a cooperative and
flexible approach in implementing the ADA and IDEA.
I am also concerned about the process for seeking public comment on the staff draft I
urge you to ensure full public participation in the Commission's deliberations. I understand
the ACIR is sponsoring a March 6-7 Conference on Federal mandates and is charging an
admission fec. in my opinion, charging a fee in this context is inappropriate since it creates
a barrier to full public participation. I strongly endorse an accessible public meeting to seek
comment on ACIR's activities.
As you know, the Clinton Administration has worked hard to strengthen the
intergovernmental parmership and to address state and local government concerns about
unfunded mandares The President signed Executive Order 12875 during his first year in
office to ensure that new regulations do not place undue burdens on states and communities.
In March of 1995, he signed the Unfunded Mandates Reform Act In addition, the
Administration has proposed or supported modifying a number of Federal laws to ease the
public sector's compliance burden. Further, in implementing Federal laws, the
Administration has sought to provide state and local governments with enhanced technical
assistance and to help them take full advantage of the flexibility that already exists in many
Federal statutes.
I have additional serious concerns about many of the draft report's recommendations
not mentioned in this letter. Attached are comments prepared by Federal agencies and
departments on the draft report. Federal agencies will also bc forwarding comments to you
and the Commission directly. I urge you to give their comments full consideration as the
Commission redrafts the report
Sincerely,
Marcia Hale
Assistant 10 the President and Director for
Intergovernmental Affairs
Attachments
cc:
Office of the Attarney General
Washington, B. of 20620
February B, 1996
The Honorable William F. Winter
Chairman
U.S. Advisory Commission
on Intergovarnmental Relations
800 K Street, N.W.
Suite 450, South Building
Washington, D.C. 20575
Dear Governor Winter:
I am writing to respond to the recommendations with respect
to the Americans with Disabilities Act of 1990 (ADA) that were
receptly published for public comment by the U.S. Advisory
Commission on Intergovernmental Relations (ACIR). These
recommendations are apparently based on the significant
misperception that the ADA imposes expensive requirements on
state and local governments under inflexible deadlines.
The ACIR preliminary report was issued pursuant to title III
of the Unfunded Mandates Reform Act of 1395, Fub. L. 104-4, 109
Stat. 48, which requires ACIR to conduct a study on the effect of
Federal mandates on state and local governments, and to report to
the President and to the Congress. However, the Unfunded
Mandates ACC expressly provides that "the ACI shall not apply to
any Federal regulation that establishes or enforces any statutory
rights that prohibit discrimination on the basis of
...
disability." Despite this statutory restriction, the ACIR report
recommends significant changes in the ADA and its implementing
regulations as they apply to state and local governments.
The ACIR commendably recognizes the ADA's vital role in
meeting this nation's obligation to ensure that citizens with
disabilities are not excluded from the mainstream of American
life. However, ACIR'S preliminary report recommends significant
changes in ADA implementation. I am concerned that these
recommendations, if implemented, would seriously undermine the
nation's uffert to meet its obligations to people with
disabilities.
Unfortunately. as noted, the ACIR report relies on the
significant misperception that the ADA imposes expensive
requirements on state and local governments under inflexible
deadlines. In fact, the ADA is both flexible and reasonable.
The statute was carefully crafted to protect the right of people
with disabilities to participate in community activities while,
at the same time, avoiding the imposition of undue burdens on
The Honorable William F. Winter
Page 2
public entities. Following precedent developed under section 504
of the Rehabilitation Act of 1973 (section 504) which prohibits
discrimination on the basis of disability by recipients of
Federal funds, the ADA generally permits state and local
governments to exercise substantial discretion in determining how
to make their programs accessible. In addition. cost is
appropriately considered in determining what the ADA requires and
whether compliance deadlines apply.
One example of the inherent flexibility in the ADA is the
implementation of the requirement for the installation of curb
ramps. The ADA requires public antities to install curb ramps to
provide access to existing sidewalks if it is necessary to
provide program access and if it can be accemplished without
incurring undue financial and administrative burdens. This
requirement 15 not new, it has applied to public entities subject
CC section 504 since 1977. In 1991 the Department of Justice's
ADA regulation extended this requirement to public entities not
subject to section 504. The regulation established January 1995
as the compliance deadline Icr the installation of required curb
rampo, but provided that 1f necessary modifications could not be
achieved without incurring undue financial burdens, those
modifications would not be required to be completed within this
time period. Since that time, in response to concerns expressed
by members of Congress and others, the Department has proposed
further extensions of time for compliance. The proposed
extension of the compliance deadlines for the installation of
curb ramps demonstrates that the ADA, in its present form, 18
being implemented in 6 way that permits state and local
governments to consider local economic realities in making ADA
ceterminations.
The Administration shares the ACIR's commitment to achieving
effective implementation of the law without imposing excessive
costs on state and local taxpayers. We believe, however, that
the specific reccmmendations ACIR has made with respect to the
ADA will not be effective in ensuring that the rights of people
with disabilities are protected. TO assist you in refining the
ACIR recommendations, the Administration will provide MORE
detailed comments on the ACIR report during the public comment
period. I look forward to working with you in the future on this
important issue.
U.S. Department of Justice
Civil Rights Division
EYES or the Attumn Amoracy General
Washington, DC 20013
The Role
of
Federal Mandates
in Intergovernmental Relations
A Preliminary ACIR Report
January, 1996
AMERICANS WITH DISARILITIES ACT (ADA)
The U.S. Advisory Committee on intergovernmental Relations
(ACIR) has published a preliminary report pursuant to title III
of the Unfunded Mandates Reform Act of 1995, which requires ACIR
to study the effect of Federal mandates on state and local
governments and to recommend changes. Although the unfunded
Mandates Act expressly provides that "the ACT shall not apply to
any Federal regulation that establishes or enforces any statutory
rights that prohibit discrimination on the bazie of
disability, the Americans with Disabilities Act (ADA) and its
implementing regulations RIE addressed in this report.
Summary: DOJ Response to ACIR Report
The report expressly recognizes that the ADA mandate is
necessary because national policy goals justify its use, however,
it recommends significant modifications in the implementation and
enforcement of the Act. Those rocommendations are based on some
significant misperceptions of the ADA requirements. The law and
its implementing regulations and this Administration's
enforcement policies already address ACIR's concerns.
The ACIR's assertion that the ADA is "one size fits all"
legislation" replete with "rigid requirements" simply misses the
mark. The ACIR report fails to recognize the inherent
flexibility of the ADA and its implementing regulations. For
example, states and localities are only required to provide
"program access" rather than total retrofit of all [acilities;
states and localities may use the law's "modue financial OI
administrative burden" defense in complying with the program
access and effective communications requirements. This defense
also provides states and localities additional flexibility in
meeting compliance deadlines.
The ACIR's misperceptions and specific recommendations are
discussed below.
1) ACIR concern: The ADA creates problems for state and 100ml
governments because of expensive retrofitting and service
delivery requirements.
The ADA does not require expensive retrofitting or impose
expensive service delivery requirements. As A result of the
extensive negotiations that accompanied the passage of the ADA,
the Act includes a number of provisions designed to ensure a fair
and balanced approach to the implementation or the Act, including
the cost of implementation. The statute includes spacific
limitations that recognize the need to strike a balance between
the right of individuals with disabilities to participate in
public activities and the legitimate financial and operational
concerns UI state and local governments.
The ADA does not require "expensive retrofitting." Title II
of the ADA prohibits discrimination on the basis of disability by
state and local governments, but it docs not prescribe rigid
requirements to achieve that objective. The ADA requires state
and local governments to provide "program 200855." This means
that they are required to make their programs and activities, not
every existing building, accessible ID qualified individuals with
disabilities.
Program access provides state and local governments with the
opportunity to be creative and flexible in their response to the
Act. For example, R service customarily provided in an
inaccessible location can be moved to an accessible space when a
person with a mobility impairment needs access to that service.
For existing facilities, physical changes are only required when
1: is not possible to provide program access in any other way.
In addition, the ACD doos not impose expensive service
delivery requirements. Although states and localities will
undoubtedly incur costs in implementing the ADA, state and local
governments are never required to take any action that would
reoult in a "fundamental alteration in the nature of a program,
service, or activity" or in "undue financial and administrative
burdens."
The ACA requires that new buildings and facilities. and
alterations to existing buildings and facilities. be built to be
accessible. This sensible requirement recognizes that it is
easiest and least expensive to build 11 access from the start.
2) ACIR Concern: The ADA statutory language is confusing and
ambiouous.
The ADA is based DII the familiar language and requirements
of Section 504 of the Rehatilitation Act of 1973. as amended.
which prohibits disability-based discrimination by recipients of
-2-
Federal financial assistance, including state and 10021
governments. Title II merely extends thin prehibition to state
and local programs that do not receive Federal funds.
Therefore, state and local governments have had over twenty
years to become familiar with terms such -- "reasonable
accommodation" and "undue hardship" and courte have had a
similarly long period to develop 0888 law under the ACC. The
only "novel" term used in the ADA is "readily achievable" and
that term applies only to certain Drivate entities covered by
title III of the ADA. It does not apply to state and local
governments (which are covered by title II).
The purpose of using these familiar terms was to ensure that
state and local governments retained the flexibility required to
enable each entity to develop its own method of complying with
the ADA, in light of its unique circumstances in a changing
environment.
ACIR correctly noves that state and local governments have a
better understanding of their specific acceesibility problems and
how to address them. It recommends modifying the ADA to change
its orientation from "rigid requirements toward a focus on goals
and goal attainment schedules."
The ADA appropriately focuses on the broad goal of
eliminating disability-based discrimination. And, by employing
some of the concepts criticized by ACIR, it does precisely chat.
For example. the purpose of the "undue burden" defense is T.O
allow each government to decide what actions to take in light of
the resources available for use in the funding and operation of a
service, program, or activity.
However, there is as inconsistency between ACIR's
recommendation that the ADA be modified to prohibit the
imposition of strict and rigid requirements and its criticiem of
the provisions of the ADA that ready give stato and local
governments the flexibility to adapt to changing local
conditions. ACIR should look again at the terms it previously
found objectionable in light of the rich history of state and
local governmental practices, agency Interpretations, and
judicial decisions.
3) ACIR Recommendation: Federal funding for ADA compliance
should be increased or the ADA should be modified to allow state
and local governments to mean ABA substantive requirements and
compliance deadlines in a manner that recognizes their technical
and budget constraints.
The ACA is = civil rights statute. As such, it has been
expressly exempted by Congress from this "unfunded mandates"
review because it is simply not acceptable to condition the civil
-3-
rights of citizens with disabilities on the availability Sfi
Federal grants to state and local governments.
The ADA is emphatically not "one size fits all" legislation.
As noted above, the ADA regulations provide considerable
flexibility to state and local governments in determining now to
best implement the law. Rather than imposing inflexible
substantive requirements, the title II regulation requires state
and local governments to conduct a self-evaluation (to identify
problems and facilitate the process of establishing compliance
goals) and ID develop a transition plan that establishes a
schedule for attaining these goals. Every item in the transition
plan. including its completion date. is subject to the caveat
that it is not required if it constitutes a fundamental
alteration or results in an undue burden. Therefore, the
compliance deadlines are inherently flexible. In addition, the
Department of Justice is new proposing to amend the title II
regulation to clarify the compliance deadlines applicable to the
installation of curb ramps.
These requirements empower STATE and loss : government. and
make it possible for each community to create = plan and a
schedule for reaching the goals of the AUA that take into account
the specific needs of that community and the resources available
to meet those noods.
4) ACIR Recommendation: A single Federal enforcement and
assistance agency should be designated to coordinate enforcement
and technical assistance.
This recommencation is apparently based on the misplaced
concern that Federal enforcement of the ADA is uncoordinated and
divided among too many departments and agencies of the
government. The development and implementation of the ADA
enforcement policies applicable to most units of state and local
government is, in fact, limited to two Federal agencies: the
Equal Employment Opportunity Commission (EEOC). which 1E
responsible for implementing the ADA's prohibition on employment
discrimination, and the Department of Justice, which ic already
responsible for coordinating the implementation and cnforcement
of all title II requirements except for the requirements that
apply only to public transportation providers, which fall within
the jurisdiction of the Department of Transportation. ADA
lawsuits filed by the Federal government that involve state or
local governments will be filed only by the Department of
Justice.
The preliminary report correctly notes that eight Federal
agencies have been assigned an enforcement role under title II of
the ADA. However, the report fails to note that the enforcement
authority of these agencies under title II is limited to the
ability to investigate complaints of discrimination and to
-1-
attempt to negotiate resolutions. All eight agencies are
required to follow DOJ'S regulation and enforcement policiant. As
& result, state and local governments are not subject to
conflicting or inconsistent standards.
The agencies designated to investigate title II ecuplaints
were selected because of their expert RR in the regulated subject
matter. These agencies have well-establiahed programs to
investigale Section 504 complaints against recipients of Federal
financial assistance. Because title Il complaints frequently
allege violations of Section 504 as wall, the designated agency
system reduces the burden on state and local agencies by allowing
a single agency to investigate both violations at the same time.
This system also assures state and local governments that
investigations will be carried our by an agency familiar with the
nature of their programs and the constraints they operate under.
For example, complaints about schools are investigated by the
Department of Education: complaints about ficess = parks are
investigated ny the Department of the Interior. If #11
investigations were consolidated in one agency, a great deal Uf
expertise would be lost.
To date, the system has worked well. There is no evidence
that consolidating all responsibility for technical assistance
and investigations in a single bureaucracy weuld benefit state
and local government.s.
5) ACIR Recoumendation: Lawsuite against state and local
governments should be limited to actions brought by the Federal
government.
This recommendation apparently stems from ACTR'S concern
that the ability of individuals LU sue may crcate enormous
litigation CODES and administrative uncertainty for state and
local governments. As applied to the ADA, this recommendation is
unacceptable because it would mean that Americans with
disabilities would be singled out as the only people unable to
seek the assistance of the COUTLE to enforce statutorily
protected civil rights.
IL im preferable =0 implement the ADA through voluntary
compliance OI, when disputes arise, through alternative means of
dispute resolution. However, alternative dispute resolution, to
be successful, must be accompanied by a alrong enforcoment
policy. If private individuals are unable to sue to enforce
their OWN rights, public entities will have no incentive to
comply wiLh the law.
6) ACIR Concern: The raderal government has not provided
sufficient technical assistance to help entities comply with the
ADA.
-5-
The Federal government has mounted an unprecedented effort
to provide technical assistance about the ADA and is actively
pursuing opportunities to expand this effort. Each of the
Federal agencies that hac an ЛОЛ policy-making role has
established an extensive technical assistance program to provide
covered entities with information about how to comply with the
ADA.
Technical assistance is developed through Federal grant
programs under which private entitico develop specialized
materials targeted to specific audiences. Through a Department
of Justice grant, selected ADA Technical Assistance materials
have been distributed IO 15, 000 libraries nationwide. The
Department of Education has funded a regional network of ten
Disability and Business Technical Assistance Centors that provide
ADA information and guidance to covered entities. In addition,
the Department of Justice is considering a proposal to catablish
an ADA clearinghouse of technical assistance materials.
-6-
U.S. DEPARTMENT OF LABOR
SECRETARY OF LABOR
WASHINGTON. D.C.
MAR
1996
The Honorable William F. Winter
Advisory Commission on Intergovernmental
Relations
800 K Street, N.W.
Suite 450
Washington, D.C. 20575
Dear Governor Winter:
The purpose of this letter is to express the Department of
Labor's deep concern over the recommendations set forth in The
Role of Federal Mandates in Intergovernmental Relations, the
preliminary draft report of the Advisory Commission on
Intergovernmental Relations (ACIR). our comments on the draft's
specific legislative proposals are contained in the enclosed
memorandum. Two issues are of particular concern to the
Department.
As stated, the purpose of this preliminary draft report was
to propose " changes in federal policies to improve
intergovernmental relations while maintaining a commitment to
national interests" (emphasis added) The report does not
achieve that purpose. In fact, the report's recommendations on
labor standards would seriously erode intergovernmental relations
and irrevocably harm this country's commitment to American
workers by endangering their right to a safe and healthful
workplace, to minimum wage and overtime pay, and to family and
medical leave in case of a serious family illness or birth of a
child. If the recommendations in the report were implemented,
state and local government workers would become second class
citizens -- deemed unworthy of the same basic protections as
their neighbors, friends, and family who work in the private
sector or for Federal agencies.
DOL is equally concerned that the ACIR has not taken into
account Congress's instruction upon adoption of the Unfunded
Mandates Reform Act that the Commission actively consider the
impact of its recommendations on American workers, and that the
Commission formulate its recommended changes in Federal policies
to enhance intergovernmental relations with a view toward
maintaining a commitment to vital national interests. We
strongly urge the Commission to specifically review its draft
recommendations with those dedicated public servants whose
employment would undergo profound changes by virtue of the
report's recommendation.
WORKING FOR AMERICA'S WORKFORCE
Thank you for your consideration of our views. I hope that
the comments and concerns raised here will assist the ACIR in
completing its work.
Sincerely,
Robert B. Reich
Enclosure
DEPARTMENT OF LABOR CONCERNS RELATIVE TO THE DRAFT REPORT
OF THE ACIR
The Department of Labor(DOL) objects not only to the specific findings of this report but
also to the method, the criteria and the assumptions the Commission used in making its
recommend-dations. The following is a summary of major concerns:
1. The ACIR frequently ignored its own Criteria for Review, which direct the Commission
to take into account the positive attributes of mandates, the rationale for their adoption,
and the impact of each on working men and women. The report contains no discussion of
Congressional intent in covering state and local workers under these statutes and little
consideration is given to how workers might be affected if these protections were taken
away from them.
There is also very little recognition of the benefits these laws accord state and local
government employees - or their employers. In many cases, the report analyzes these
basic labor standards as though the only factor to be considered was their effect on state
and local government budgets. The rights and protections of workers are treated as though
they are merely another yearly "expense."
2. The ACIR's Criteria ignores the directive of the Unfunded Mandates Act to recommend
"terminating Federal mandates" only where they are "duplicative, obsolete or lacking in
practical utility." Under the Act, "concern" by state and local governments was not to be
the basis for recommending termination of a mandate. The Federal Labor Standards Act
(FLSA), Federal and Medical Leave Act (FMLA), Davis Bacon Related Acts (DBRA) and the
Occupational Safety and Health Act(OSH Act) are certainly not obsolete - the mere fact
that DOL continues finding violations proves their continued relevance and utility. Nor
are these statutes duplicative - there are no comparable Federal laws and where
corresponding state laws do exist, they are often weaker or less inclusive.
3. Many of the concems used as justification for examining DOL's programs have no
bearing on the unique characteristics of state, local, or tribal governments - in fact, they
are the same type of concerns attributed to some employers in the private sector.
4. The ACIR's assumption that collective bargaining agreements can substitute for Federal
standards is undermined by the fact that only 40 percent of state and local government
workers are represented by a labor union and guaranteed collective bargaining rights.
5. Finally, the special role of public employers is ignored - one would expect these
governmental entities to be model employers setting examples for their private sector
counterparts. In fact, the Congressional Accountability Act recently applied the FLSA,
FMLA and other labor laws to Congress to provide those workers the same protections as
the private sector counterparts.
2
Fair Labor Standards Act (FLSA)
The ACIR report recommends repeal of FLSA's coverage of state and local government
workers.
By guaranteeing a minimum wage and premium pay when an individual works more than
40 hours week, the FLSA establishes minimum labor standards below which no one
should be required to work. There is no reason to deny public servants these fundamental
protections and thereby make them second class citizens. In recent years, the provision of
public services such as nursing care, transportation, sanitation, water and sewer service,
has increasingly been done by both public and private entities, and in these instances, the
Act simply ensures that every employee, regardless of his or her employer, is entitled to
minimum protections. Allowing state and local governments to pay less than the minimum
wage and to avoid paying premium pay for overtime is unfair to the public workers and
could place private employers that observe fair labor standards at a competitive
disadvantage.
Congress amended the FLSA in 1985 and gave special accomodations to state and local
governments by providing for compensatory time off in lieu of overtime pay, special rules
for the use of volunteers, and delay in implementing compliance obligations to allow for a
transition period. The report notes that the Department of Labor has provided assistance
to state and local governments with respect to their FLSA obligations, and acknowledges
that DOL has worked with state and local governments to recognize the unique issues that
arise in the enforcement context. Despite DOL's efforts, it clear that concern with FLSA
can be traced to an inability to adequately monitor compliance and a persistent
misunderstanding of the requirements of the Act. These are not reasons for denying
workers basic minimum rights, but arguments for strengthening the Department's ability
to work with state and local governments, rather than dismantling it. While the report
decries the rights of workers to seek judicial redress under the statute, rolling back those
rights suggests far more than a restructuring of Federal/State relations. It would deny basic
rights to public servants to be paid the minimumwage and overtime pay when they are
forced to work excessively long hours.
In several instances, the report levels criticism against application of the FLSA to the public
sector that has no foundation in fact. For example, there is no basis for the suggestion
made in the report that Federal agencies have been able to manipulate FLSA regulations in
order to meet budgetary restrictions.
3
Family and Medical Leave Act (FMLA)
The report recommends repeal of FMLA's coverage of statue and local government
employees.
Like the FLSA, the FMLA provides a fundamental safeguard to American workers. It
guarantees that workers can take job protected unpaid leave for specified family and
medical reasons. The report provides no substantive justification for repealing that
safeguard with respect to public workers. The report not only the overstates the costs of
compliance, but also ignores the substantial benefits achieved by the FMLA, including
improved worker productivity and morale, reduced employee turnover, and greater labor-
management stability. In fact, available data show that the costs of hiring and training new
employees far outstrip the costs of granting temporary leave for family or medical reasons.
In addition, the bipartisan Commission on Leave created under the FMLA released two
studies in October 1995. The study of employers in the private sector revealed that over
an 18-month period, 90 % of participating firms reported little or no costs associated with
administration, hiring, and training, and continuation of benefits required under the statute,
and 85% reported no noticeable affect on employee turnover, absence or productivity.
There is no evidence to suggest that the results are any different in the public sector.
Occupational Safety and Health Act (OSH Act)
The report recommends repeal of all state coverage.
As a preliminary matter, the Department cannot accept the Commission's assertion that a
voluntary program constitutes a mandate. It is not a mandate because the only state and
local government workplaces covered by OSH are located in states where the state
legislature has voluntarily agreed to participate.
In any event, we believe-and many states agree- that repeal of the OSH Act with respect
to public workers could endanger the health and safety of thousands of workers who
perform some of the Nation's most dangerous jobs - firefighting, hazardous waste cleanup,
maintenance and sanitation work. Indeed, according to the American Federation of State,
County and Municipal Employees, almost 200 of their members were killed on the job
between 1983 and 1993. Public workers deserve the same protections accorded to
America's private sector employees.
As with other DOL-related recommendations, the report fails to acknowledge the
substantial benefits that accrue from the Act. These benefits are not limited to the health
and safety protections for the affected worker; but include public employers, who
experience reduced worker compensation costs, higher employee productivity, and
reduced liability and insurance costs; and the general public who benefit from a reduction
in the exposure to dangerous conditions in public buildings and other facilities.
4
The ACIR report acknowledges that several of the concerns with the OSH Act rest on
misperceptions or a lack of information. For example, the report notes that even in some
states that have not volunteered to participate in the Federal Occupational and Safety
Administration's program, there is a belief that OSH Act requirements are mandatory. It is
difficult to imagine how this makes the case for repeal of the Act. Similarly, the report
charges that the credibility of safety and health programs under the Act is seriously
compromised by the "perceived" rigidity, complexity and burdensomeness of the
regulations, and a focus on punishment rather than compliance assistance. On the
contrary, in recognition of the unique characteristics of public employers, OSHA has
encouraged flexibility in State plans by 1) encouraging states to develop alternate standards
that provide equivalent protection when circumstances differ from the private sector; 2)
allowing States to use administrative actions instead of monetary penalties to compel
compliance; 3) permitting agency self-inspection under certain conditions. In addition,
OSHA provides a great deal of assistance to states that volunteer to participate, and
contrary to the ACIR report, punishment is not a focal point of enforcement, since OSHA
has no jurisdiction over public workplaces. In fact, an atmosphere of cooperation pervades
the Federal/State relationship under the OSH Act, as typified by a Memorandum of
Understanding between OSHA and various state regulators to address areas of mutual
interest.
Finally, the report suggests that Federal agencies are free from meeting OSH ACT
requirements, and state and local governments should have the same options. Once again,
this premise is incorrect. All Federal agencies must comply with OSHA standards, as the
recent debate on extending OSH Act protections to Congressional employees recognized.
Davis-Bacon Related Acts (DBRA)
The report recommends an exemption for projects below one million dollars or for which
the Federal grant or other assistance is less than 50 percent of total funding.
The Federal government spends substantial funds to assist state and local governments with
local public construction projects through grants and other financial assistance. DBRA
prevailing wage requirements, attached to this assistance, ensure that the Federal
governments's vast purchasing power does not depress local wage levels or disrupt local
economies. However, DOL cannot accept the view of the Commission that DBRA
requirements impose an unfunded intergovernmental mandate. The provisions apply by
virtue of voluntary participation in these Federal assistance programs.
The ACIR report suggests that the DBRA automatically increase public construction costs
because certain low-wage construction contractors may pay lower than prevailing wages.
This flawed reasoning ignores any comparative differences in productivity from different
wage levels and work experience, and that fact that the shoddy construction practices that
often accompany substandard wages almost inevitably result in increased repair and
5
maintenance costs. The report also ignores the fact that the DBRA prevailing wage is based
on "measures of central tendency", and there will always be contractors who pay lower
then the prevailing wages in a community.
ACIR claims that DBRA wage surveys are "voluntary and sporadic," but fails to
acknowledge DOL's significant regulatory reforms undertaken over the past decade to
ensure that its wage determinations accurately reflect wages paid in the local community.
They also claim a scarcity of data leads to importation of non-local rates When there is a
lack of recent construction, DOL looks to the surrounding area for wage data, not to
"distant" areas as ACIR charges. The report asserts that DBRA may reduce the hiring of
local persons with limited experience. In fact, regulatory provisions also encourage
apprenticeship and training of persons with limited experience by allowing for exceptions
to the journey-level wage under approved training programs.
The Clinton Administration's Davis-Bacon reform bill last year would have raised the
DBRA threshold to $50,000 for alteration and repair projects, and $100,000 for new
construction projects, in addition to reducing administrative burdens and costs. DOL
cannot concur in the report's proposal to limit DRBA to projects of more than $1 million
which receive over 50 per cent of their financing from Federal funds. These proposals
would eliminate prevailing wage protections for thousands of workers under the guise of
reform, and make the administration of Davis-Bacon requirements more troublesome for
states and local governments.
Similarly, we have serious concerns with the report's recommendation to base coverage on
the percentage of Federal finance provided to the construction project. DBRA coverage
must be established before the competitive bidding process begins. ACIR's proposal
would disrupt that process, and impose additional burdens on state and local contracting
agencies to determine if DBRA applies.
03/01/96
15:24
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09:45
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AGENCY STATES
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
PROTECTION
WASHINGTON, D.C. 20460
FEB 21 1996
OFFICE OF REGIONAL OPERATIONS
AND STATE/LOCAL RELATIONS
MEMORANDUM
SUBJECT: EPA Concerns on ACIR's Preliminary Report: The Role of Federal Mandates in
Intergovernmental Relations
FROM:
Associate Shelley H. Administrator Metzenbaum
TO:
Marcia L. Hale, Director of Intergovernmental Affairs
Kathryn Higgins, Cabinet Secretary
Kathleen McGinty, Chairman
Council on Environmental Quality
:
Carol H. Rasco, Director of Domestic Policy Council
Below is a brief list of our preliminary concerns about the ACIR report. We are still
working on an analysis and will provide you with a fuller assessment soon, but I wanted to get
over to you now a sense of our serious concerns with this document.
We have several specific concerns about the way the report is written. As you know, we
at EPA are strongly committed to and are aggressively reinventing the way we work with state
and local governments, but we also feel that it is time to move from a rhetorical discussion of
unfunded mandates to a more helpful explication of the strengths and weaknesses of mandates.
Because the report as currently written focuses primarily on the problems associated with
mandates, the resultant tone is negative and implies federal mandates are always bad public policy.
We obviously take issue with that. The ACIR is supposed to be the nation's intellectual
leader in sorting out intergovernmental issues. The report as now written fails to meet this
challenge.
A few key suggestions on the general content of the report follow:
Racycled/Recyclable
Printed with Say/Candia Ink on paper as
contains at least 50% recycled fiber
03/01/96
15:25
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For each of the fourteen statutes reviewed:
-
The report needs to address why the federal mandate was passed in the first place
For example, the Clean Air Act and Clean Water Act were enacted because
voluntary standards had failed; a federal mandate was necessary.
-
The report needs to show benefits resulting from that mandate.
-
The report needs to reflect what innovations have been implemented over time to
make mandates more flexible and to avoid "one-size-fits-all-problem."
-
Where specific problems are raised in the report. verification is needed.
For example, EPA is frequently mocked for requiring Midwestern states to
monitor for pesticides currently used primarily on pineapples. The story is very
misleading. The pesticide which can cause male sterility was used on a wide
variety of crops in the Midwest and is still present in groundwater today.
Specific recommendations of the report need to be changed or, alternatively. the
report should include a range of options.
A few preliminary suggestions and concerns about the specific recommendations in the report
follow:
Citizen Suits: We oppose the report's recommendation that citizen suits against
state and local governments be eliminated. Citizen oversight is a key accountability
mechanism in many of our laws, and is an invaluable compliance incentive for all
levels of government (including the federal level). The public has a right to
participate in ensuring environmental compliance, and citizen enforcement may be
less costly in many instances.
Clean Air Act Financial Aid Penalties: We do not support removing financial aid
penalties under the Clean Air Act. In the past, when sanctions were discretionary,
compliance deadlines were not met. Now that sanctions are mendatory,
compliance deadlines, with a few exceptions, are being met, although we have
almost never actually imposed a sanction.
Single Agency Designation: We question the recommendation that a single agency
be designated to coordinate the implementation of each mandate and make binding
decisions.
Health and Safety Standards for States and Localities: It is not fair to have
different standards for state and local governments than those applied to private
industry and the federal government Furthermore, extension of this principle to
environmental laws could affect health and safety protection for state and local
employees, lower health and safety standards for state and local facilities serving
the general public, and possibly distort healthy private sector competition with
local governments.
2
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Clean Water Act Cost-Sharing and Timetables: We believe the statement about
cost-sharing is factually inaccurate. We already share costs, but also believe that
those who contaminate the water should pay to clean it up. It is essential to a
sound incentive structure. Also, we do not support blanket elimination of
timetables for standards.
Safe Drinking Water Act: We agree that amendments similar to those enacted by
the Senate are appropriate, but strongly oppose establishing a long-term goal of
returning to the states full responsibility for imposition and implementation of
those standards.
We at EPA remain committed to working with our state, local and tribal government
partners to ensure strong environmental protection, while allowing and encouraging flexible and
innovative approaches to achieve that objective.
CC:
Carol M. Browner
Fred Hansen
3
we
016/024
03/01/96 15:26
OFFICE OF GEN COUNSEL
4002
02/21/96 WED 13:33 FAI 202 2052689
OF FORGING
UNITED STATES DEPARTMENT OF EDUCATION
.
OFFICE OF THE GENERAL COUNSEL
MADED form of 1
To:
Ann McGuire
Office of Cabinet Affairs
From:
Deputy General 986 Counsel for Regulations and Legislation
Jamienne Studle
Subject:
ED Comments on ACIR Report
Date:
February 21, 1996
Attached, in response to Cabinet Affairs' request for agency comments on the ACIR draft report,
are talking points developed by ED on the Individuals with Disabilities Education Act section and
recommendations. We provided these to Marcia Hale's office last week.
Please let me or Frank Holleman know if you want additional information or comments on the
rest of the report or on the strategy for ACIR activities.
CC:
Frank Holleman
Judy Heumann
Jack Kristy
Suzanne Sheridan
600 INDEPENDENCE AVE.. S.W. WASHINGTON DC 20202-2110
Our mission is to ensure equal access to education and (o promote educational excellence throughous the Nation
03/01/96
15:27
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2002089
OFFICE OF GEN COUNSEL
003
TALKING POINTS: ACIR and IDEA
The Individuals with Disabilities Education Act (IDEA) was
particularly unsuited for ACIR's review because (1) a much more
through, comprehensive and careful review was done by the
Administration in developing its reauthorization proposal, and
(2) there is a very close relationship between the IDEA and civil
rights laws and constitutional protections that establish the
basic individual right toithe educational services and procedural
protections that the IDEA helps States and localities provide.
The Department of Education's reauthorization proposal: (1) drew
upon a comprehensive review of current law and the oral and
written comments of over 3,000 parents, educators, and
administrators, representing the widest possible spectrum of
views; (2) has among its basic objectives reducing administrative
burden and paperwork for State and local school systems and
promoting the resolution of disagreements between parents and
schools through mediation rather than litigation; and, (3) is
being used by both the House and the Senate as the basis for
their respective legislative vehicles (expected to move through
Congress in the Spring of 1996), thereby ensuring that a
substantial portion--perhape 70%-of the Administration's reform
program is likely to be enacted.
With respect to the specifics of ACIR's draft recommendations:
(1) Increase Federal Funding to 40% Level. While in
principle it would be desireable to increase the level of Federal
funding, any dramatic increase--much less the five-fold increase
called for by ACIR--1s simply not realistic in light of current
budget stringencies.
(2) Relieve States From Administrative Mandates. Many of
the provisions of the Administration's proposal are designed to
reduce burden and paperwork at the school. school district, and
State level and re-direct those energies into improving
educational outcomes for disabled children.
(3) Require Alternative Dispute Resolution Practices. The
Administration's proposal would, for the first time, require
States to offer impartial mediation to parents as a no-cost
optional means of settling disputes between them and the school
district regarding services provided to their disabled child.
The Department considered, and rejected as impractical, requiring
parents to avail themselves of mediation, based in part on the
comments of State administrators with experience in the operation
of mediation systems.
(4) Require Any Court Challenge Be Brought By State or
Federal Agencies, Not Parents. The Administration is strongly
opposed to ACIR's fourth recommendation, to require that any
3/01/96 15:28
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OFFICE OF GEN COUNSEL
004
court challenge based on IDEA be brought by State or Federal
agencies, not parents.
-- Depriving parents and students of the ability to
vindicate their rights under IDEA in court, if necessary, is
fundamentally inconsistent with the intent of the law to create
individual rights in those parents and students, and would call
into question the nature of the "rights" created.
-- While one of the objectives of the Administration's
proposal is to promote non-litigative means of settling disputes
between parents and school systems, it cannot be said that the
amount of litigation spawned by IDEA 1s disproportionate: IDEA
serves each year approximately 5.4 million disabled children in
approximately 14,000 school districts across the country;
according to ACIR's study, there were 61 reported cases in the
Federal Courts under IDEA in calendar year 1994 slightly more
than one in each State.
-- Without correspondingly large increases in funding for
Federal enforcement staff (e.g., investigators, resolution
experts, and litigators) - an unlikely result in today's climate,
and not called for by ACIR--IDEA enforcement would be
substantially undermined. Even If additional Federal resources
were available, it is hard to see how "Pederalizing" the
enforcement function, of necessity involving intrusive
investigations and Federal versus State litigation, would promote
intergovernmental harmony and cooperation.
-- As a practical matter, because the rights conferred on
disabled students and their parents by IDEA are rooted in the
non-discriminatory principles of other Federal laws (e.g.,
section 504 and the Equal Protection Clause), it is unlikely that
such parents and students could be kept out of Federal Courts in
any event.
-- There is no significant political support for divesting
disabled students and their parents of their rights under IDEA to
seek redress in the courts.
03/01/96
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DRAFT
Mr. Phillip M. Dearborn
ACIR
Suite 450 South
800 K Street, N.W.
Washington, D.C. 20575
Dear Mr. Dearborn:
The Department of Transportation strongly disagrees with the Advisory
Commission on Intergovernmental Relations (ACIR) preliminary report's
recommendation to repeal provisions of the Omnibus Transportation Employee
Testing Act of 1991 that subject safety-sensitive state and local employees who
drive large motor vehicles to alcohol and drug testing. The recommendation is
based on significant misunderstandings of the purpose and scope of the
program.
The main purpose of drug and alcohol testing in the motor carrier safety
program is to foster safety on our nation's highways by deterring the misuse of
alcohol and the use of illegal drugs by "safety-sensitive" drivers. These are
drivers who drive large vehicles (i.e., those heavier than 26,001 pounds), vehicles
that carry hazardous materials, or passenger vehicles with a capacity of 16 or
more persons. From a safety perspective, there is no rational distinction that can
be drawn between drivers of these vehicles who are employed by state and local
governments on one hand and private companies on the other.
If a person's car is hit by a large truck operated by a driver whose skills are
impaired by drugs or alcohol, it is not likely to matter much to that person
whether the driver was a private, state, or local employee. There are likely to be
few parents who believe that it makes sense to deter substance abuse by drivers
of private intercity buses, but not the drivers of their children's school buses. In
the absence of a Federal requirement, there may be some state and local
government agencies, and there may be some private companies, that take the
initiative to create effective deterrent measures, but a patchwork of some
effective, some ineffective, and some nonexistent private and public programs
could not amount to adequate protection of travelers on the highways.
The report asserts that the law is "inconsistent" because it includes public works
and other drivers but "excludes law enforcement and emergency workers" from
testing requirements. This assertion is incorrect. Most law enforcement and
emergency services personnel are not "safety-sensitive" drivers who are covered
S/E'd
FEB 22 '96 02:02PM DOT/CONSUMER AFFAIRS
05/02/96. THU 10:53 FAX 2022081821
OFFICE OF THE SECRETARY
002
OF
United States Department of the Interior
OFFICE OF THE SECRETARY
Washington. D.C. 20240
MARCH
2.1849
March 1, 1996
The Honorable William F. Winter
Chairman
U.S. Advisory Commission
on Intergovernmental Relations
800 K Street, NW
Suite 450, South Building
Washington, DC 20575
Dear Governor Winter:
I am writing to convey serious concerns that the preliminary ACIR report reflects clear
misunderstandings about the Endangered Species Act (ESA) and fails to acknowledge
substantial reforms put forward by the Clinton Administration in making the law work more
flexibly for States, local government and private landowners.
Fundamentally, we question the characterization of the ESA as an unfunded mandate. The
ESA mandates only that each Federal agency ensure that its Federal actions are not likely to
jeopardize the continued existence of threatened or endangered species. The ESA's only other
regulatory provision prohibits anyone from killing or injuring individual threatened or
endangered animals without authorization. Neither of these provisions constitute unfunded
mandates.
The ACIR preliminary report summary recommends that "exemptions to the ESA should be
applied more extensively," among other suggestions. Regrettably, more extensive use of the
ESA's exemption process necessarily means that more endangered wildlife will become
extinct. More extensive use of the ESA's exemption process is not necessary to balance
conservation and economic concerns. In fact, the record to date shows from 1987-1995, only
0.3% of development projects were stopped as a result of the ESA consultation process, so it
is fair to conclude that economic development objectives have almost always been met within
the context of the ESA.
Perhaps more disturbing, the report fails to acknowledge unprecedented reforms advanced by
the Administration to minimize economic consequences and increase flexibility of the ESA.
Our efforts include regional conservation solutions such as the Pacific Northwest Forest Plan,
the California Bay-Delta Accord, regional conservation planning in southern California,
southern Utah and throughout the Southeast -- all developed in close cooperation with State
and local governments. Across the country, more than 200 Habitat Conservation Plans
OFFICE OF THE SECRETARY
S
003
THU 10:53 FAX 2022081821
(HCPs) are under development with private landowners as a means of balancing conservation
and development objectives. We have established "safe harbor" agreements that provide
incentives to sustain wildlife habitat and provide regulatory certainty for private landowners.
We have also built partnerships with States in endangered species candidate conservation and
recovery programs, implemented uniform "peer review" procedures to ensure that every listing
and recovery program is reviewed by independent scientific experts, and developed regulatory
relief for small landowners.
There are a number of recommendations included in the ACIR report that reflect reforms we
have already put in place. The ACIR report, for example, calls for additional funding and
the Administration has consistently provided additional outlays in our budget proposals for
State recovery and habitat conservation efforts including more than $18 million for State
habitat acquisition efforts in FY1996, which was eliminated by Congress.
Finally, there are several mischaracterizations of the regulatory provisions of the ESA within
the ACIR report that include inaccurate representation of Section 9 prohibitions on "taking" of
species. "Critical habitat" is also mischaracterized here as an automatic mandate rather than a
standard in conservation of threatened or endangered species that may require special
management considerations or protection by Federal agencies. Federal agencies do not have
authority to target state parks for protection and recovery efforts. The only obligations that
these non-Federal entities have under the ESA are those that every person and entity in this
country has to not kill or injure individual threatened or endangered animal without proper
authorization. They may, and sometimes do, voluntarily participate in Federal conservation
objectives where the objective is to avoid regulation on private landowners.
In conclusion, we have demonstrated an unparalleled record in making the ESA work more
flexibly for States, local government, and private landowners. We are interested in creating
partnerships with ACIR to advance these efforts, however, it is important that we move
forward with a common understanding of the ESA as well as with common objectives.
Sincerely,
GeorgeTfraugh Frampton,
Assistant Secretary for
Fish and Wildlife and Parks
e pur PRESIDENT STATES i-c. UNITED
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
20012
WASHINGTON, D.C. 20503
GENERAL COUNSEL
July 11, 1996
MEMORANDUM FOR SALLY KATZEN
ADMINISTRATOR, OFFICE OF INFORMATION
AND REGULATORY AFFAIRS
FROM:
Robert G. Damus RGD
General Counsel
SUBJECT:
Advisory Commission on Intergovernmental Relations
(ACIR)
This addresses the question of whether the ACIR must cease
operations when they exhaust their appropriations even if they
have not finished the study mandated by P.L. 104-4. For the
reasons stated below, the answer is yes, they must cease
operations, because they cannot exceed their appropriation
without violating the Antideficiency Act.
The 1996 appropriation for ACIR provides as follows:
For necessary expenses of the Advisory Commission on
Intergovernmentil Relations, $784,000, of which
$334,000 is to carry out the provisions of Public Law
104-4, and of which $450,000 shall be available only
for the purposes of the prompt and orderly termination
of the Advisory Commission on Intergovernmental
Relations.
Under this appropriation, ACIR has been provided two
separate sums; one is usable solely to the P.L. 104-4 study, and
the other is available solely for termination costs. The
Antideficiency Act, 31 U.S.C. 1341, absolutely prohibits a
federal official from exceeding an appropriation. A direction to
carry out some task does not overcome the prohibition. Moreover,
a basic principle of appropriations law is that a direction or
authorization to an agency to accomplish some purpose does not
itself carry with it the funds to carry out the direction; an
appropriation must be provided for that purpose. See, GAO
Principles of Appropriations Law at Vol. I, page 2-33 (1991)
In this case, Congress (in P.L. 104-4) has directed ACIR to
do a study and has provided a specific sum for that purpose. If
the funds are exhausted before the study is complete, ACIR
cannot continue to expend funds to complete the study. There is
also a second limitation that cannot be exceeded: a fixed sum to
be used to shutdown ACIR. (That is, Congress terminated ACIR's
in the FY 1997 Treasury-Postal appropriations bill.) If ACIR
still has funds available to complete the study, but expending
them would incur obligations (e.g., for additional severance pay)
that would cause the termination amount to be exceeded, then it
must nevertheless terminate obligations at that point, even
though the study is left unfinished as a result.
In sum, there are two separate funding limitations on ACIR,
and neither of them can be exceeded -- either to finish the P.L.
104 - 4 study or for any other reason.
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DRAFT
ADVISORY COMMISSION ON INTERGOVERNMENTAL AFFAIRS (ACIR) MANDATES
REPORT: LABOR ISSUES
Summary of DOL Concerns: ACIR continues to ignore the
Congressional directive to consider the impact of state and local
mandates on working men and women. In the report:
*The recommendations concerning the Federal Labor Standards
Act (FLSA) demonstrate a lack of understanding of the requirements
placed on Federal Agencies by Title 5, USC as the recommendation
would would result in additional burdens on local and state
government.
*The comments related to the Family and Medical Leave
Act (FMLA) disregard several relevant findings of the Commission on
Family and Medical Leave.
*Recommendations related to the Occupational Health and Safety
Act (OSHA) call upon the Federal government to take on basic state
and local government responsibilities and comments related to OSHA
standards are unsupported.
The Davis Bacon recommendations would be detrimental to
basic worker protection and they would complicate the application
of Davis Bacon requirements.
Fair Labor Standards Act
ACIR Recommendation: Retain state and local government coverage
under the Fair Labor Standards Act, but amend the Act to allow
state and local governments' compliance with either the policies of
the Act or the comparable policies of the federal government under
Title 5, USC.
DOL Response:
*ACIR implies that Federal agencies have a lesser standard to meet
in terms of employment standards; however, federal agencies are
required to comply with both FLSA and Title 5. If the
recommendation is to require the same standards for state and local
government employees as are required for Federal employees, the
effect would be to place additional regulatory requirements on
state and local governments which presently do not exist.
*ACIR ignores the steps which both Congress and the Labor
Department have taken in order to address particular problems
related to state and local governments. For example:
07/16/96
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*
there are special overtime standards for law enforcement and
firefighting personnel and "comp time" provisions.
* special accommodations were included in regulation changes
in 1992 that allow state and local governments to continue to claim
exemption from overtime for their executive, administrative and
professional employees despite the fact that they account for leave
on an hour-for-hour basis or that they have systems requiring them
to make partial-day deductions from pay when accrued leave has been
exhausted.
*
the Department of Labor investigates state and local
governments essentially on a complaint-only basis.
+
the Department of Labor will not file suit against a state
or local government to enforce the FLSA unless at least 30-days
advance written notice has been given that the pay practices are in
violation.
Family and Medical Leave
ACIR Recommendation: Retain state and local coverage under the
Family and Medical Leave Act.
DOL Response:
*While ACIR recommends continued coverage for state and local
employees, the ACIR reports states that the Family and Medical
Leave Commission's study did not survey public agencies. The
report however fails to point out that the Employee Survey was a
nationally representative sample of public and private sector
workers.
*In addition, a separate survey of state family and medical leave
policies specifically asked whether public agencies had encountered
difficulties in applying the FMLA special rules for employees of
schools. For states that had their own family or medical leave
provisions, local school administrators state that they encountered
no problems in reporting to both state and federal enforcement
entities.
*The ACIR report suggests that Federal agencies have more
flexibility then state and local governments in the implementation
of FMLA; however, unlike the Federal government state and local
governments have the authority to:
*
deny restoration to certain highly compensated individuals.
*
require certifications by health care provider if the
employee claims they are unable to return to work because of a
07/16/96
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specified condition.
*
entitled to recover premiums paid for maintaining health
benefits coverage during the period of unpaid leave if the
employees fails to return to work for reasons related to health or
other circumstances beyond the control of the employee.
Occupational Safety and Health Act
ACIR Recommendation: Make no changes in Occupational Safety and
Health Act (OSHA) language regarding state and local government
compliance, but increase federal funding sources for state and
local government training and technical assistance on OSHA
requirements as well as funding for implementation of requirements.
DOL Response:
*Safe workplaces are a fundamental obligation of all employers and
the Federal government should not be expected to finance safe work
places for state and local governments.
The ACIR report states that there is a "lack of credible
information on the rationale for or the scientific basis of many
OSHA standards and requirements. " It is irresponsible for ACIR to
make this statement and to offer no documentation or even one
regulation or standard as an example.
Davis-Bacon Related Acts
ACIR Recommendation: Amend the related laws to exempt projects
below a higher dollar threshold than exists in most laws and
consider exempting projects in which federal participation is a low
percentage of total project costs.
DOL Response:
The Administration has supported bi-partisan reform legislation in
the House and Senate to increase dollar thresholds and to reduce
the level of paperwork and record keeping requirements.
The ACIR proposal of adding the percentage threshold to the Davis-
Bacon requirements would be deurimental to fundamental worker wage
protection. In addition, it would further complicate the
administration of Davis-Bacon as it would increase the level of
uncertainty as to when and which projects would be subject to
07/16/96
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1
005/005
Davis-Bacon.
*The ACIR report suggests that there is often a conflict between
Federal Davis Bacon and state prevailing wage laws. This conflict
is "inappropriately detrimental to intergovernmental comity. "
Without specific examples it is difficult to rebut the ACIR
assertion, except to note that the Davis Bacon statute is a
longstanding Federal law with a simple threshold mechanism. In
addition, most state prevailing wage statutes were written to
complement and build upon the Federal statute.
21
AND FEDERAL
SEC. 207. PILOT PROGRAM ON SMALL GOVERNMENT FLEXIBILITY.
; U.S.C. App.)
(a) IN GENERAL-The Director of the Office of Management
rental commu-
and Budget, in consultation with Federal agencies, shall establish
pilot programs in at least 2 agencies to test innovative, and more
ederal officials
flexible regulatory approaches that-
wernments (or
(1) reduce reporting and compliance burdens on small gou-
in their behalf)
ernments; and
(2) meet overall statutory goals and objectives.
of exchanging
(b) PROGRAM Focus.-The pilot programs shall focus on rules
gement or im-
in effect or proposed rules, or a combination thereof.
rsuant to pub-
SEC. 208. ANNUAL STATEMENTS TO CONGRESS ON AGENCY COMPLI-
vernmental re-
ANCE.
No later than 1 year after the effective date of this title and an-
; months after
nually thereafter, the Director of the Office of Management and
" issue guide-
Budget shall submit to the Congress, including the Committee on
ate implemen-
Governmental Affairs of the Senate and the Committee on Govern-
able laws and
ment Reform and Oversight of the House of Representatives, a writ-
ten report detailing compliance by each agency during the preceding
reporting period with the requirements of this title.
ON REQUIRED.
SEC. 209. EFFECTIVE DATE.
ion (b), before
at is required
This title and the amendments made by this title shall take ef-
ider a reason-
fect on the date of the enactment of this Act.
e alternatives
ensome alter-
TITLE III-REVIEW OF FEDERAL
MANDATES
the case of a
'ate; and
SEC. 301. BASELINE STUDY OF COSTS AND BENEFITS.
aining a Fed-
(a) IN GENERAL-No later than 18 months after the date of en-
) shall apply
actment of this Act, the Advisory Commission on Intergovernmental
Relations (hereafter in this title referred to as the "Advisory Com-
with the final
mission"), in consultation with the Director, shall complete a study
to examine the measurement and definition issues involved in cal-
cost-effective
culating the total costs and benefits to State, local, and tribal gou-
ectives of the
ernments of compliance with Federal law.
(b) CONSIDERATIONS.-The study required by this section shall
consider-
fter the date
(1) the feasibility of measuring indirect costs and benefits
: of Manage-
as well as direct costs and benefits of the Federal, State, local,
ritten expla-
and tribal relationship; and
e in that cer-
(2) how to measure both the direct and indirect benefits of
ately comply
Federal financial assistance and tax benefits to State, local,
and tribal governments.
OFFICE.
SEC. 302. REPORT ON FEDERAL MANDATES BY ADVISORY COMMISSION
dget shall-
ON INTERGOVERNMENTAL RELATIONS.
ed under sec-
(a) IN GENERAL-The Advisory Commission on Intergovern-
mental Relations shall in accordance with this section-
its to the Di-
(1) investigate and review the role of Federal mandates in
nably timely
intergovernmental relations and their impact on State, local,
roposed rule-
tribal, and Federal government objectives and responsibilities,
'nt was pre-
and their impact on the competitive balance between State,
local, and tribal governments, and the private sector and con-
22
sider views of and the impact on working men and women on
those same matters;
(2) investigate and review the role of unfunded State man-
dates imposed on local governments;
(3) make recommendations to the President and the Con-
gress regarding-
(A) allowing flexibility for State, local, and tribal gou-
ernments in complying with specific Federal mandates for
which terms of compliance are unnecessarily rigid or com-
plex;
(B) reconciling any 2 or more Federal mandates which
impose contradictory or inconsistent requirements;
(C) terminating Federal mandates which are duplica-
tive, obsolete, or lacking in practical utility;
(D) suspending, on a temporary basis, Federal man-
dates which are not vital to public health and safety and
which compound the fiscal difficulties of State, local, and
tribal governments, including recommendations for trigger-
ing such suspension;
(E) consolidating or simplifying Federal mandates, or
the planning or reporting requirements of such mandates,
in order to reduce duplication and facilitate compliance by
ti
State, local, and tribal governments with those mandates;
c
(F) establishing common Federal definitions or stand-
or
ards to be used by State, local, and tribal governments in
ti
complying with Federal mandates that use different defini-
c
tions or standards for the same terms or principles; and
B
(G)(i) the mitigation of negative impacts on the private
TE
sector that may result from relieving State, local, and tribal
C.
governments from Federal mandates (if and to the extent
that such negative impacts exist on the private sector); and
P
(ii) the feasibility of applying relief from Federal man-
SL
dates in the same manner and to the same extent to private
vi
sector entities as such relief is applied to State, local, and
th
tribal governments; and
St
(4) identify and consider in each recommendation made
under paragraph (3), to the extent practicable-
m
(A) the specific Federal mandates to which the rec-
in
ommendation applies, including requirements of the de-
to.
partments, agencies, and other entities of the Federal Gov-
di
ernment that State, local, and tribal governments utilize
metric systems of measurement; and
SE
(B) any negative impact on the private sector that may
result from implementation of the recommendation.
th:
(b) CRITERIA-
in
(1) IN GENERAL-The Commission shall establish criteria
of
for making recommendations under subsection (a).
(2) ISSUANCE OF PROPOSED CRITERIA-The Commission
the
shall issue proposed criteria under this subsection no later than
Fe
60 days after the date of the enactment of this Act, and there-
an
after provide a period of 30 days for submission by the public
Co
of comments on the proposed criteria.
(3) FINAL CRITERIA-No later than 45 days after the date
the
of issuance of proposed criteria, the Commission shall-
she
23
and women on
(A) consider comments on the proposed criteria received
under paragraph (2);
ded State man-
(B) adopt and incorporate in final criteria any rec-
ommendations submitted in those comments that the Com-
t and the Con-
mission determines will aid the Commission in carrying
out its duties under this section; and
and tribal gou-
(C) issue final criteria under this subsection.
il mandates for
(c) PRELIMINARY REPORT.-
y rigid or com-
(1) IN GENERAL-No later than 9 months after the date of
the enactment of this Act, the Commission shall-
andates which
(A) prepare and publish a preliminary report on its ac-
nents;
tivities under this title, including preliminary recommenda-
ch are duplica-
tions pursuant to subsection (a);
(B) publish in the Federal Register a notice of avail-
Federal man-
ability of the preliminary report; and
and safety and
(C) provide copies of the preliminary report to the pub-
tate, local, and
lic upon request.
ons for trigger-
(2) PUBLIC HEARINGS.-The Commission shall hold public
hearings on the preliminary recommendations contained in the
! mandates, or
preliminary report of the Commission under this subsection.
uch mandates,
(d) FINAL REPORT.-No later than 3 months after the date of
compliance by
the publication of the preliminary report under subsection (c), the
ose mandates;
Commission shall submit to the Congress, including the Committee
ions or stand-
on Government Reform and Oversight of the House of Representa-
overnments in
tives, the Committee on Governmental Affairs of the Senate, the
ifferent defini-
Committee on the Budget of the Senate, and the Committee on the
ciples; and
Budget of the House of Representatives, and to the President a final
on the private
report on the findings, conclusions, and recommendations of the
cal, and tribal
Commission under this section.
to the extent
(e) PRIORITY TO MANDATES THAT ARE SUBJECT OF JUDICIAL
te sector); and
PROCEEDINGS.-In carrying out this section, the Advisory Commis-
Federal man-
sion shall give the highest priority to immediately investigating, re-
tent to private
viewing, and making recommendations regarding Federal mandates
ite, local, and
that are the subject of judicial proceedings between the United
States and a State, local, or tribal government.
dation made
(f) DEFINITION.-For purposes of this section the term "State
mandate" means any provision in a State statute or regulation that
hich the rec-
imposes an enforceable duty on local governments, the private sec-
ts of the de-
tor, or individuals, including a condition of State assistance or a
Federal Gov-
ments utilize
duty arising from participation in a voluntary State program.
SEC. 303. SPECIAL AUTHORITIES OF ADVISORY COMMISSION.
ctor that may
(a) EXPERTS AND CONSULTANTS.-For purposes of carrying out
:tion.
this title, the Advisory Commission may procure temporary and
intermittent services of experts or consultants under section 3109(b)
blish criteria
of title 5, United States Code.
(b) DETAIL OF STAFF OF FEDERAL AGENCIES.-Upon request of
Commission
the Executive Director of the Advisory Commission, the head of any
no later than
Federal department or agency may detail, on a reimbursable basis,
t, and there-
any of the personnel of that department or agency to the Advisory
ry the public
Commission to assist it in carrying out this title.
(c) ADMINISTRATIVE SUPPORT SERVICES.-Upon the request of
fter the date
the Advisory Commission, the Administrator of General Services
Ill-
shall provide to the Advisory Commission, on a reimbursable basis,
24
the administrative support services necessary for the Advisory Com-
mission to carry out its duties under this title.
(d) CONTRACT AUTHORITY.-The Advisory Commission may,
subject to appropriations, contract with and compensate government
and private persons (including agencies) for property and services
used to carry out its duties under this title.
SEC. 304. ANNUAL REPORT TO CONGRESS REGARDING FEDERAL
COURT RULINGS.
No later than 4 months after the date of enactment of this Act,
and no later than March 15 of each year thereafter, the Advisory
Commission on Intergovernmental Relations shall submit to the
Congress, including the Committee on Government Reform and
Oversight of the House of Representatives and the Committee on
Governmental Affairs of the Senate, and to the President a report
describing any Federal court case to which a State, local, or tribal
government was a party in the preceding calendar year that re-
quired such State, local, or tribal government to undertake respon-
sibilities or activities, beyond those such government would other-
wise have undertaken, to comply with Federal statutes and regula-
tions.
SEC. 305. DEFINITION.
Notwithstanding section 3 of this Act, for purposes of this title
the term "Federal mandate" means any provision in statute or regu-
lation or any Federal court ruling that imposes an enforceable duty
upon State, local, or tribal governments including a condition of
Federal assistance or a duty arising from participation in a vol-
untary Federal program.
pro
SEC. 306. AUTHORIZATION OF APPROPRIATIONS
There are authorized to be appropriated to the Advisory Com-
mission to carry out section 301 and section 302, $500,000 for each
of fiscal years 1995 and 1996.
TITLE IV-JUDICIAL REVIEW
SEC. 401. JUDICIAL REVIEW.
(a) AGENCY STATEMENTS ON SIGNIFICANT REGULATORY Ac-
TIONS.-
(1) IN GENERAL-Compliance or noncompliance by any
agency with the provisions of sections 202 and 203(a) (1) and
(2) shall be subject to judicial review only in accordance with
this section.
(2) LIMITED REVIEW OF AGENCY COMPLIANCE OR NON-
COMPLIANCE.-(A) Agency compliance or noncompliance with
the provisions of sections 202 and 203(a) (1) and (2) shall be
subject to judicial review only under section 706(1) of title 5,
United States Code, and only as provided under subparagraph
(B).
(B) If an agency fails to prepare the written statement (in-
cluding the preparation of the estimates, analyses, statements,
or descriptions) under section 202 or the written plan under sec-
tion 203(a) (1) and (2), a court may compel the agency to pre-
pare such written statement.