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[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 1214 Referral Instructions Senate (RIS)]

106th CONGRESS
  1st Session
                                S. 1214

   To ensure the liberties of the people by promoting federalism, to 
protect the reserved powers of the States, to impose accountability for 
  Federal preemption of State and local laws, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             June 10, 1999

  Mr. Thompson (for himself, Mr. Levin, Mr. Voinovich, Mr. Robb, Mr. 
 Cochran, Mrs. Lincoln, Mr. Enzi, Mr. Breaux, Mr. Roth, and Mr. Bayh) 
   introduced the following bill; which was read twice and referred 
 jointly pursuant to the order of August 4, 1977, to the Committees on 
  the Budget and Governmental Affairs, with instructions that if one 
Committee reports, the other Committee have thirty days to report or be 
                               discharged

_______________________________________________________________________

                                 A BILL

 
   To ensure the liberties of the people by promoting federalism, to 
protect the reserved powers of the States, to impose accountability for 
  Federal preemption of State and local laws, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federalism Accountability Act of 
1999''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) the Constitution created a strong Federal system, 
        reserving to the States all powers not delegated to the Federal 
        Government;
            (2) preemptive statutes and regulations have at times been 
        an appropriate exercise of Federal powers, and at other times 
        have been an inappropriate infringement on State and local 
        government authority;
            (3) on numerous occasions, Congress has enacted statutes 
        and the agencies have promulgated rules that explicitly preempt 
        State and local government authority and describe the scope of 
        the preemption;
            (4) in addition to statutes and rules that explicitly 
        preempt State and local government authority, many other 
        statutes and rules that lack an explicit statement by Congress 
        or the agencies of their intent to preempt and a clear 
        description of the scope of the preemption have been construed 
        to preempt State and local government authority;
            (5) in the past, the lack of clear congressional intent 
        regarding preemption has resulted in too much discretion for 
        Federal agencies and uncertainty for State and local 
        governments, leaving the presence or scope of preemption to be 
        litigated and determined by the judiciary and sometimes 
        producing results contrary to or beyond the intent of Congress; 
        and
            (6) State and local governments are full partners in all 
        Federal programs administered by those governments.

SEC. 3. PURPOSES.

    The purposes of this Act are to--
            (1) promote and preserve the integrity and effectiveness of 
        our Federal system of government;
            (2) set forth principles governing the interpretation of 
        congressional and agency intent regarding preemption of State 
        and local government authority by Federal laws and rules;
            (3) establish an information collection system designed to 
        monitor the incidence of Federal statutory, regulatory, and 
        judicial preemption; and
            (4) recognize the partnership between the Federal 
        Government and State and local governments in the 
        implementation of certain Federal programs.

SEC. 4. DEFINITIONS.

    In this Act the definitions under section 551 of title 5, United 
States Code, shall apply and the term--
            (1) ``local government'' means a county, city, town, 
        borough, township, village, school district, special district, 
        or other political subdivision of a State;
            (2) ``public officials'' means elected State and local 
        government officials and their representative organizations;
            (3) ``State''--
                    (A) means a State of the United States and an 
                agency or instrumentality of a State;
                    (B) includes the District of Columbia and any 
                territory of the United States, and an agency or 
                instrumentality of the District of Columbia or such 
                territory;
                    (C) includes any tribal government and an agency or 
                instrumentality of such government; and
                    (D) does not include a local government of a State; 
                and
            (4) ``tribal government'' means an Indian tribe as that 
        term is defined under section 4(e) of the Indian Self-
        Determination and Education Assistance Act (25 U.S.C. 450b(e)).

SEC. 5. COMMITTEE OR CONFERENCE REPORTS.

    (a) In General.--The report accompanying any bill or joint 
resolution of a public character reported from a committee of the 
Senate or House of Representatives or from a conference between the 
Senate and the House of Representatives shall contain an explicit 
statement on the extent to which the bill or joint resolution preempts 
State or local government law, ordinance, or regulation and, if so, an 
explanation of the reasons for such preemption. In the absence of a 
committee or conference report, the committee or conference shall 
report to the Senate and the House of Representatives a statement 
containing the information described in this section before 
consideration of the bill, joint resolution, or conference report.
    (b) Content.--The statement under subsection (a) shall include an 
analysis of--
            (1) the extent to which the bill or joint resolution 
        legislates in an area of traditional State authority; and
            (2) the extent to which State or local government authority 
        will be maintained if the bill or joint resolution is enacted 
        by Congress.

SEC. 6. RULE OF CONSTRUCTION RELATING TO PREEMPTION.

    (a) Statutes.--No statute enacted after the effective date of this 
Act shall be construed to preempt, in whole or in part, any State or 
local government law, ordinance, or regulation, unless--
            (1) the statute explicitly states that such preemption is 
        intended; or
            (2) there is a direct conflict between such statute and a 
        State or local law, ordinance, or regulation so that the two 
        cannot be reconciled or consistently stand together.
    (b) Rules.--No rule promulgated after the effective date of this 
Act shall be construed to preempt, in whole or in part, any State or 
local government law, ordinance, or regulation, unless--
            (1)(A) such preemption is authorized by the statute under 
        which the rule is promulgated; and
            (B) the rule, in compliance with section 7, explicitly 
        states that such preemption is intended; or
            (2) there is a direct conflict between such rule and a 
        State or local law, ordinance, or regulation so that the two 
        cannot be reconciled or consistently stand together.
    (c) Favorable Construction.--Any ambiguities in this Act, or in any 
other law of the United States, shall be construed in favor of 
preserving the authority of the States and the people.

SEC. 7. AGENCY FEDERALISM ASSESSMENTS.

    (a) In General.--The head of each agency shall--
            (1) be responsible for implementing this Act; and
            (2) designate an officer (to be known as the federalism 
        officer) to--
                    (A) manage the implementation of this Act; and
                    (B) serve as a liaison to State and local officials 
                and their designated representatives.
    (b) Notice and Consultation With Potentially Affected State and 
Local Government.--Early in the process of developing a rule and before 
the publication of a notice of proposed rulemaking, the agency shall 
notify, consult with, and provide an opportunity for meaningful 
participation by public officials of governments that may potentially 
be affected by the rule for the purpose of identifying any preemption 
of State or local government authority or other significant federalism 
impacts that may result from issuance of the rule. If no notice of 
proposed rulemaking is published, consultation shall occur sufficiently 
in advance of publication of an interim final rule or final rule to 
provide an opportunity for meaningful participation.
    (c) Federalism Assessments.--
            (1) In general.--In addition to whatever other actions the 
        federalism officer may take to manage the implementation of 
        this Act, such officer shall identify each proposed, interim 
        final, and final rule having a federalism impact, including 
        each rule with a federalism impact identified under subsection 
        (b), that warrants the preparation of a federalism assessment.
            (2) Preparation.--With respect to each such rule identified 
        by the federalism officer, a federalism assessment, as 
        described in subsection (d), shall be prepared and published in 
        the Federal Register at the time the proposed, interim final, 
        and final rule is published.
            (3) Consideration of assessment.--The agency head shall 
        consider any such assessment in all decisions involved in 
        promulgating, implementing, and interpreting the rule.
            (4) Submission to the office of management and budget.--
        Each federalism assessment shall be included in any submission 
        made to the Office of Management and Budget by an agency for 
        review of a rule.
    (d) Contents.--Each federalism assessment shall include--
            (1) a statement on the extent to which the rule preempts 
        State or local government law, ordinance, or regulation and, if 
        so, an explanation of the reasons for such preemption;
            (2) an analysis of--
                    (A) the extent to which the rule regulates in an 
                area of traditional State authority; and
                    (B) the extent to which State or local authority 
                will be maintained if the rule takes effect;
            (3) a description of the significant impacts of the rule on 
        State and local governments;
            (4) any measures taken by the agency, including the 
        consideration of regulatory alternatives, to minimize the 
        impact on State and local governments; and
            (5) the extent of the agency's prior consultation with 
        public officials, the nature of their concerns, and the extent 
        to which those concerns have been met.
    (e) Publication.--For any applicable rule, the agency shall include 
a summary of the federalism assessment prepared under this section in a 
separately identified part of the statement of basis and purpose for 
the rule as it is to be published in the Federal Register. The summary 
shall include a list of the public officials consulted and briefly 
describe the views of such officials and the agency's response to such 
views.

SEC. 8. PERFORMANCE MEASURES.

    Section 1115 of title 31, United States Code, is amended by adding 
at the end the following:
    ``(g) The head of an agency may not include in any performance plan 
under this section any agency activity that is a State-administered 
Federal grant program, unless the performance measures for the activity 
are determined in cooperation with public officials as defined under 
section 4 of the Federalism Accountability Act of 1999.''.

SEC. 9. CONGRESSIONAL BUDGET OFFICE PREEMPTION REPORT.

    (a) Office of Management and Budget Information.--Not later than 
the expiration of the calendar year beginning after the effective date 
of this Act, and every year thereafter, the Director of the Office of 
Management and Budget shall submit to the Director of the Congressional 
Budget Office information describing interim final rules and final 
rules issued during the preceding calendar year that preempt State or 
local government authority.
    (b) Congressional Research Service Information.--Not later than the 
expiration of the calendar year beginning after the effective date of 
this Act, and every year thereafter, the Director of the Congressional 
Research Service shall submit to the Director of the Congressional 
Budget Office information describing court decisions issued during the 
preceding calendar year that preempt State or local government 
authority.
    (c) Congressional Budget Office Report.--
            (1) In general.--After each session of Congress, the 
        Congressional Budget Office shall prepare a report on the 
        extent of Federal preemption of State or local government 
        authority enacted into law or adopted through judicial or 
        agency interpretation of Federal statutes during the previous 
        session of Congress.
            (2) Content.--The report under paragraph (1) shall 
        contain--
                    (A) a list of Federal statutes preempting, in whole 
                or in part, State or local government authority;
                    (B) a summary of legislation reported from 
                committee preempting, in whole or in part, State or 
                local government authority;
                    (C) a summary of rules of agencies preempting, in 
                whole or in part, State and local government authority; 
                and
                    (D) a summary of Federal court decisions on 
                preemption.
            (3) Availability.--The report under this section shall be 
        made available to--
                    (A) each committee of Congress;
                    (B) each Governor of a State;
                    (C) the presiding officer of each chamber of the 
                legislature of each State; and
                    (D) other public officials and the public on the 
                Internet.

SEC. 10. FLEXIBILITY AND FEDERAL INTERGOVERNMENTAL MANDATES.

    (a) Definition.--Section 421(5)(B) of the Congressional Budget Act 
of 1974 (2 U.S.C. 658(5)(B)) is amended--
            (1) by striking ``(i)(I) would'' and inserting ``(i) 
        would'';
            (2) by striking ``(II) would'' and inserting ``(ii)(I) 
        would''; and
            (3) by striking ``(ii) the'' and inserting ``(II) the''.
    (b) Committee Reports.--Section 423(d) of the Congressional Budget 
Act of 1974 (2 U.S.C. 658b(d)) is amended--
            (1) in paragraph (1)(C) by striking ``and'' after the 
        semicolon;
            (2) in paragraph (2) by striking the period and inserting 
        ``; and''; and
            (3) by adding at the end the following:
            ``(3) if the bill or joint resolution would make the 
        reduction specified in section 421(5)(B)(ii)(I), a statement of 
        how the committee specifically intends the States to implement 
        the reduction and to what extent the legislation provides 
        additional flexibility, if any, to offset the reduction.''.
    (c) Congressional Budget Office Estimates.--Section 424(a) of the 
Congressional Budget Act of 1974 (2 U.S.C. 658c(a)) is amended--
            (1) by redesignating paragraph (3) as paragraph (4); and
            (2) by inserting after paragraph (2) the following:
            ``(3) Additional flexibility information.--The Director 
        shall include in the statement submitted under this subsection, 
        in the case of legislation that makes changes as described in 
        section 421(5)(B)(ii)(I)--
                    ``(A) if no additional flexibility is provided in 
                the legislation, a description of whether and how the 
                States can offset the reduction under existing law; or
                    ``(B) if additional flexibility is provided in the 
                legislation, whether the resulting savings would offset 
                the reductions in that program assuming the States 
                fully implement that additional flexibility.''.

SEC. 11. EFFECTIVE DATE.

    This Act and the amendments made by this Act shall take effect 90 
days after the date of enactment of this Act.
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