II

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.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Federalism Account5 ability Act of 1999’’.
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1 SEC. 2. FINDINGS.

2 Congress finds that—

3 (1) the Constitution created a strong Federal

4 system, reserving to the States all powers not dele5 gated to the Federal Government;

6 (2) preemptive statutes and regulations have at

7 times been an appropriate exercise of Federal pow8 ers, and at other times have been an inappropriate

9 infringement on State and local government author10 ity;

11 (3) on numerous occasions, Congress has en12 acted statutes and the agencies have promulgated

13 rules that explicitly preempt State and local govern14 ment authority and describe the scope of the pre15 emption;

16 (4) in addition to statutes and rules that explic17 itly preempt State and local government authority,

18 many other statutes and rules that lack an explicit

19 statement by Congress or the agencies of their in20 tent to preempt and a clear description of the scope

21 of the preemption have been construed to preempt

22 State and local government authority;

23 (5) in the past, the lack of clear congressional

24 intent regarding preemption has resulted in too

25 much discretion for Federal agencies and uncer26 tainty for State and local governments, leaving the
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1 presence or scope of preemption to be litigated and

2 determined by the judiciary and sometimes pro3 ducing results contrary to or beyond the intent of

4 Congress; and

5 (6) State and local governments are full part6 ners in all Federal programs administered by those

7 governments.

8 SEC. 3. PURPOSES.

9 The purposes of this Act are to—

10 (1) promote and preserve the integrity and ef11 fectiveness of our Federal system of government;

12 (2) set forth principles governing the interpre13 tation of congressional and agency intent regarding

14 preemption of State and local government authority

15 by Federal laws and rules;

16 (3) establish an information collection system

17 designed to monitor the incidence of Federal statu18 tory, regulatory, and judicial preemption; and

19 (4) recognize the partnership between the Fed20 eral Government and State and local governments in

21 the implementation of certain Federal programs.

22 SEC. 4. DEFINITIONS.

23 In this Act the definitions under section 551 of title

24 5, United States Code, shall apply and the term—
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1 (1) ‘‘local government’’ means a county, city,

2 town, borough, township, village, school district, spe3 cial district, or other political subdivision of a State;

4 (2) ‘‘public officials’’ means elected State and

5 local government officials and their representative

6 organizations;

7 (3) ‘‘State’’—

8 (A) means a State of the United States

9 and an agency or instrumentality of a State;

10 (B) includes the District of Columbia and

11 any territory of the United States, and an agen12 cy or instrumentality of the District of Colum13 bia or such territory;

14 (C) includes any tribal government and an

15 agency or instrumentality of such government;

16 and

17 (D) does not include a local government of

18 a State; and

19 (4) ‘‘tribal government’’ means an Indian tribe

20 as that term is defined under section 4(e) of the In21 dian Self-Determination and Education Assistance

22 Act (25 U.S.C. 450b(e)).

23 SEC. 5. COMMITTEE OR CONFERENCE REPORTS.

24 (a) IN GENERAL.—The report accompanying any bill

25 or joint resolution of a public character reported from a
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1 committee of the Senate or House of Representatives or

2 from a conference between the Senate and the House of

3 Representatives shall contain an explicit statement on the

4 extent to which the bill or joint resolution preempts State

5 or local government law, ordinance, or regulation and, if

6 so, an explanation of the reasons for such preemption. In

7 the absence of a committee or conference report, the com8 mittee or conference shall report to the Senate and the

9 House of Representatives a statement containing the in10 formation described in this section before consideration of

11 the bill, joint resolution, or conference report.

12 (b) CONTENT.—The statement under subsection (a)

13 shall include an analysis of—

14 (1) the extent to which the bill or joint resolu15 tion legislates in an area of traditional State author16 ity; and

17 (2) the extent to which State or local govern18 ment authority will be maintained if the bill or joint

19 resolution is enacted by Congress.

20 SEC. 6. RULE OF CONSTRUCTION RELATING TO PREEMP21 TION.

22 (a) STATUTES.—No statute enacted after the effec23 tive date of this Act shall be construed to preempt, in

24 whole or in part, any State or local government law, ordi25 nance, or regulation, unless—
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1 (1) the statute explicitly states that such pre2 emption is intended; or

3 (2) there is a direct conflict between such stat4 ute and a State or local law, ordinance, or regulation

5 so that the two cannot be reconciled or consistently

6 stand together.

7 (b) RULES.—No rule promulgated after the effective

8 date of this Act shall be construed to preempt, in whole

9 or in part, any State or local government law, ordinance,

10 or regulation, unless—

11 (1)(A) such preemption is authorized by the

12 statute under which the rule is promulgated; and

13 (B) the rule, in compliance with section 7, ex14 plicitly states that such preemption is intended; or

15 (2) there is a direct conflict between such rule

16 and a State or local law, ordinance, or regulation so

17 that the two cannot be reconciled or consistently

18 stand together.

19 (c) FAVORABLE CONSTRUCTION.—Any ambiguities

20 in this Act, or in any other law of the United States, shall

21 be construed in favor of preserving the authority of the

22 States and the people.

23 SEC. 7. AGENCY FEDERALISM ASSESSMENTS.

24 (a) IN GENERAL.—The head of each agency shall—
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1 (1) be responsible for implementing this Act;

2 and

3 (2) designate an officer (to be known as the

4 federalism officer) to—

5 (A) manage the implementation of this

6 Act; and

7 (B) serve as a liaison to State and local of8 ficials and their designated representatives.

9 (b) NOTICE AND CONSULTATION WITH POTEN10 TIALLY AFFECTED STATE AND LOCAL GOVERNMENT.—

11 Early in the process of developing a rule and before the

12 publication of a notice of proposed rulemaking, the agency

13 shall notify, consult with, and provide an opportunity for

14 meaningful participation by public officials of governments

15 that may potentially be affected by the rule for the pur16 pose of identifying any preemption of State or local gov17 ernment authority or other significant federalism impacts

18 that may result from issuance of the rule. If no notice

19 of proposed rulemaking is published, consultation shall

20 occur sufficiently in advance of publication of an interim

21 final rule or final rule to provide an opportunity for mean22 ingful participation.

23 (c) FEDERALISM ASSESSMENTS.—

24 (1) IN GENERAL.—In addition to whatever

25 other actions the federalism officer may take to
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1 manage the implementation of this Act, such officer

2 shall identify each proposed, interim final, and final

3 rule having a federalism impact, including each rule

4 with a federalism impact identified under subsection

5 (b), that warrants the preparation of a federalism

6 assessment.

7 (2) PREPARATION.—With respect to each such

8 rule identified by the federalism officer, a federalism

9 assessment, as described in subsection (d), shall be

10 prepared and published in the Federal Register at

11 the time the proposed, interim final, and final rule

12 is published.

13 (3) CONSIDERATION OF ASSESSMENT.—The

14 agency head shall consider any such assessment in

15 all decisions involved in promulgating, implementing,

16 and interpreting the rule.

17 (4) SUBMISSION TO THE OFFICE OF MANAGE18 MENT AND BUDGET.—Each federalism assessment

19 shall be included in any submission made to the Of20 fice of Management and Budget by an agency for re21 view of a rule.

22 (d) CONTENTS.—Each federalism assessment shall

23 include—

24 (1) a statement on the extent to which the rule

25 preempts State or local government law, ordinance,
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1 or regulation and, if so, an explanation of the rea2 sons for such preemption;

3 (2) an analysis of—

4 (A) the extent to which the rule regulates

5 in an area of traditional State authority; and

6 (B) the extent to which State or local au7 thority will be maintained if the rule takes ef8 fect;

9 (3) a description of the significant impacts of

10 the rule on State and local governments;

11 (4) any measures taken by the agency, includ12 ing the consideration of regulatory alternatives, to

13 minimize the impact on State and local governments;

14 and

15 (5) the extent of the agency’s prior consultation

16 with public officials, the nature of their concerns,

17 and the extent to which those concerns have been

18 met.

19 (e) PUBLICATION.—For any applicable rule, the

20 agency shall include a summary of the federalism assess21 ment prepared under this section in a separately identified

22 part of the statement of basis and purpose for the rule

23 as it is to be published in the Federal Register. The sum24 mary shall include a list of the public officials consulted
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1 and briefly describe the views of such officials and the

2 agency’s response to such views.

3 SEC. 8. PERFORMANCE MEASURES.

4 Section 1115 of title 31, United States Code, is

5 amended by adding at the end the following:

6 ‘‘(g) The head of an agency may not include in any

7 performance plan under this section any agency activity

8 that is a State-administered Federal grant program, un9 less the performance measures for the activity are deter10 mined in cooperation with public officials as defined under

11 section 4 of the Federalism Accountability Act of 1999.’’.

12 SEC. 9. CONGRESSIONAL BUDGET OFFICE PREEMPTION

13 REPORT.

14 (a) OFFICE OF MANAGEMENT AND BUDGET INFOR15 MATION.—Not later than the expiration of the calendar

16 year beginning after the effective date of this Act, and

17 every year thereafter, the Director of the Office of Man18 agement and Budget shall submit to the Director of the

19 Congressional Budget Office information describing in20 terim final rules and final rules issued during the pre21 ceding calendar year that preempt State or local govern22 ment authority.

23 (b) CONGRESSIONAL RESEARCH SERVICE INFORMA24 TION.—Not later than the expiration of the calendar year

25 beginning after the effective date of this Act, and every
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1 year thereafter, the Director of the Congressional Re2 search Service shall submit to the Director of the Congres3 sional Budget Office information describing court deci4 sions issued during the preceding calendar year that pre5 empt State or local government authority.

6 (c) CONGRESSIONAL BUDGET OFFICE REPORT.—

7 (1) IN GENERAL.—After each session of Con8 gress, the Congressional Budget Office shall prepare

9 a report on the extent of Federal preemption of

10 State or local government authority enacted into law

11 or adopted through judicial or agency interpretation

12 of Federal statutes during the previous session of

13 Congress.

14 (2) CONTENT.—The report under paragraph

15 (1) shall contain—

16 (A) a list of Federal statutes preempting,

17 in whole or in part, State or local government

18 authority;

19 (B) a summary of legislation reported from

20 committee preempting, in whole or in part,

21 State or local government authority;

22 (C) a summary of rules of agencies pre23 empting, in whole or in part, State and local

24 government authority; and
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1 (D) a summary of Federal court decisions

2 on preemption.

3 (3) AVAILABILITY.—The report under this sec4 tion shall be made available to—

5 (A) each committee of Congress;

6 (B) each Governor of a State;

7 (C) the presiding officer of each chamber

8 of the legislature of each State; and

9 (D) other public officials and the public on

10 the Internet.

11 SEC. 10. FLEXIBILITY AND FEDERAL INTERGOVERN12 MENTAL MANDATES.

13 (a) DEFINITION.—Section 421(5)(B) of the Congres14 sional Budget Act of 1974 (2 U.S.C. 658(5)(B)) is

15 amended—

16 (1) by striking ‘‘(i)(I) would’’ and inserting ‘‘(i)

17 would’’;

18 (2) by striking ‘‘(II) would’’ and inserting

19 ‘‘(ii)(I) would’’; and

20 (3) by striking ‘‘(ii) the’’ and inserting ‘‘(II)

21 the’’.

22 (b) COMMITTEE REPORTS.—Section 423(d) of the

23 Congressional Budget Act of 1974 (2 U.S.C. 658b(d)) is

24 amended—
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1 (1) in paragraph (1)(C) by striking ‘‘and’’ after

2 the semicolon;

3 (2) in paragraph (2) by striking the period and

4 inserting ‘‘; and’’; and

5 (3) by adding at the end the following:

6 ‘‘(3) if the bill or joint resolution would make

7 the reduction specified in section 421(5)(B)(ii)(I), a

8 statement of how the committee specifically intends

9 the States to implement the reduction and to what

10 extent the legislation provides additional flexibility, if

11 any, to offset the reduction.’’.

12 (c) CONGRESSIONAL BUDGET OFFICE ESTIMATES.—

13 Section 424(a) of the Congressional Budget Act of 1974

14 (2 U.S.C. 658c(a)) is amended—

15 (1) by redesignating paragraph (3) as para16 graph (4); and

17 (2) by inserting after paragraph (2) the fol18 lowing:

19 ‘‘(3) ADDITIONAL FLEXIBILITY INFORMA20 TION.—The Director shall include in the statement

21 submitted under this subsection, in the case of legis22 lation that makes changes as described in section

23 421(5)(B)(ii)(I)—

24 ‘‘(A) if no additional flexibility is provided

25 in the legislation, a description of whether and
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1 how the States can offset the reduction under

2 existing law; or

3 ‘‘(B) if additional flexibility is provided in

4 the legislation, whether the resulting savings

5 would offset the reductions in that program as6 suming the States fully implement that addi7 tional flexibility.’’.

8 SEC. 11. EFFECTIVE DATE.

9 This Act and the amendments made by this Act shall

10 take effect 90 days after the date of enactment of this

11 Act.

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