I
106TH CONGRESS
1ST SESSION
H. R. 2245
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 HOUSE OF REPRESENTATIVES
JUNE 16, 1999
Mr. MCINTOSH (for himself, Mr. MORAN of Virginia, Mr. PORTMAN, Ms.
MCCARTHY of Missouri, Mr. CASTLE, Mr. CONDIT, and Mr. DAVIS of
Virginia) introduced the following bill; which was referred to the Com-
mittee on Government Reform, and in addition to the Committees on
Rules, and the Judiciary, for a period to be subsequently determined by
the Speaker, in each case for consideration of such provisions as fall with-
in the jurisdiction of the committee concerned
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 Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Federalism Act of
1999’’.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) The Constitution created a strong Federal
system, reserving to the States all powers not ex-
pressly delegated to the Federal Government.
(2) Preemptive statutes and regulations have at
times been an appropriate exercise of Federal pow-
ers, and at other times have been an inappropriate
infringement on State and local government author-
ity.
(3) On numerous occasions, the Congress has
enacted statutes and Federal agencies have promul-
gated rules that expressly preempt State and local
government authority and describe the scope of the
preemption.
(4) In addition to statutes and rules that ex-
pressly preempt State and local government author-
ity, many other statutes and rules that lack an ex-
press statement by the Congress or Federal 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 uncer-
tainty for State and local governments, leaving the
(1) DEFINITIONS IN 5 U.S.C. 551.—The defini-
tions under section 551 of title 5, United States
Code, shall apply.
(2) BILL.—The term ‘‘bill’’ includes a joint res-
olution.
(3) DIRECTOR.—The term ‘‘Director’’ means
the Director of the Congressional Budget Office.
(4) LOCAL
GOVERNMENT.—The term ‘‘local
government’’ means a county, city, town, borough,
township, village, school district, special district, or
other political subdivision of a State.
(5) PUBLIC
OFFICIALS.—The term ‘‘public
officials’’—
(A) means elected officials of State and
local governments; and
(B) includes the following national organi-
zations that represent such officials:
(i) The National Governors’ Associa-
tion.
(ii) The National Conference of State
Legislatures.
(iii) The Council of State Govern-
ments.
(iv) The United States Conference of
Mayors.
(v) The National League of Cities.
(vi) The National Association of
Counties.
(vii) The International City/County
Management Association.
(6) STATE.—The term ‘‘State’’—
(A) means a State of the United States
and an agency or instrumentality of a State;
(B) includes—
(i) the District of Columbia and any
territory of the United States, and an
agency or instrumentality of the District of
Columbia or such territory; and
(ii) any tribal government and an
agency or instrumentality of such govern-
ment; and
(C) does not include a local government of
a State.
(7) TRIBAL GOVERNMENT.—The term ‘‘tribal
government’’ means an Indian tribe as that term is
defined under section 4(e) of the Indian Self-Deter-
mination and Education Assistance Act (25 U.S.C.
450b(e)).
SEC. 5. DEFERENCE TO STATE MANAGEMENT PRACTICES.
(a) EXPENDITURE AND ACCOUNTING OF FEDERAL
FUNDS.—A State shall expend and account for covered
Federal grant funds in accordance with requirements and
procedures under the laws of the State governing State
expenditure of and accounting for State funds, subject to
any requirement that expressly applies under any other
Federal statute.
(b) USE, MANAGEMENT, AND DISPOSAL OF PER-
SONAL PROPERTY ACQUIRED WITH FEDERAL FUNDS.—
A State shall use, manage, and dispose of personal prop-
erty acquired with covered Federal grant funds in accord-
ance with requirements and procedures under the laws of
the State governing State use, management, and disposal
of personal property acquired with State funds, subject to
any requirement that expressly applies under any other
Federal statute.
(c) PROCUREMENT WITH FEDERAL FUNDS.—In pro-
curing any personal property or service with covered Fed-
eral grant funds, a State shall follow the same require-
ments and procedures that apply under the laws of the
State governing State procurement with State funds, sub-
ject to any requirement that expressly applies under any
other Federal statute.
(d) DEFINITIONS.—In this section:
(1) COVERED
FEDERAL
GRANT
FUNDS
DE-
FINED.—The term ‘‘covered Federal grant funds’’
means amounts provided as Federal financial assist-
ance, other than assistance under a grant program
to which the Grants Management Common Rule (53
F.R. 8034) does not apply on the date of the enact-
ment of this Act.
(2) PERSONAL
PROPERTY.—The term ‘‘‘per-
sonal property’’ means property other than real
property.
SEC. 6. 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, un-
less the performance measures for the activity are deter-
mined in cooperation with public officials.’’.
SEC. 7. REQUIREMENTS FOR AGENCY RULEMAKING.
(a) NOTICE
AND CONSULTATION WITH POTEN-
TIALLY AFFECTED STATE AND LOCAL GOVERNMENTS.—
Not later than the date of publication of an advance notice
of proposed rulemaking for a rule promulgated by an
agency, or the equivalent date if such notice is not pub-
lished, the head of the agency shall notify and consult with
public officials who may potentially be affected by the rule
for the purpose of identifying any preemption of State or
local government authority that may result from issuance
of the rule.
(b) IDENTIFICATION
OF PREEMPTION
AND FED-
ERALISM IMPACTS.—
(1) IN
GENERAL.—The head of an agency
shall—
(A) publish with each proposed rule issued
by the agency a proposed federalism impact as-
sessment under paragraph (2);
(B) publish with each interim final rule
issued by the agency a proposed federalism im-
pact assessment under paragraph (2); and
(C) publish with each final rule issued by
the agency a final federalism impact assessment
under paragraph (2).
(2) FEDERALISM IMPACT ASSESSMENT.—A pro-
posed or final federalism impact assessment under
this subsection shall include with respect to the pro-
posed, interim final, or final rule concerned an iden-
tification of—
(A) any provision of the rule that is a pre-
emption of State or local government authority;
(B) the constitutional basis for each such
preemption;
(C) any provision of statute under which
the rule is issued that is an express preemption
of State or local government authority, and any
provision of any other statute that expressly
states that the Congress intended such preemp-
tion;
(D) any provision of the rule that estab-
lishes a condition for receipt of grant funds
that is not related to the purpose of the grant
program under which the funds are provided;
(E) any other provision of the rule that
impacts State or local governments, including
any provision that constitutes a Federal inter-
governmental mandate (as that term is defined
in section 421 of the Congressional Budget and
Impoundment Control Act of 1974);
(F) any regulatory alternatives considered
by the agency;
(G) the estimated costs that will be in-
curred by state and local governments as a re-
sult of issuance of the rule; and
(H) the extent of the agency’s consulta-
tions with public officials who may potentially
be affected by the rule.
(c) PUBLICATION.—The head of an agency shall in-
clude, in a separately identified part of the preamble to
each proposed rule, interim final rule, and final rule pub-
lished by the agency in the Federal Register, a summary
of the proposed or final (as applicable) federalism impact
assessment prepared under this section.
SEC. 8. LEGISLATIVE REQUIREMENTS.
(a) IN GENERAL.—The report accompanying any bill
of a public character reported from a committee of the
Senate or House of Representatives, or the joint explana-
tory statement accompanying a conference report on any
such bill, shall include a statement that—
(1) identifies each section of the bill or con-
ference report that constitutes an express preemp-
tion of State or local government authority, or as-
serts that the bill does not contain any such section;
and
(2) describes the constitutional basis for any
such preemption;
(3) sets forth the reasons for each such preemp-
tion; and
(4) includes the federalism impact assessment
by the Director under subsection (b).
(b) FEDERALISM IMPACT ASSESSMENT BY CONGRES-
SIONAL BUDGET OFFICE.—
(1) PROVISION OF BILL OR CONFERENCE RE-
PORT TO DIRECTOR.—When a committee of the Sen-
ate or the House of Representatives orders reported
a bill of a public character, and before a conference
committee files a conference report thereon, the
committee or conference committee shall promptly
provide the bill to the Director and shall identify to
the Director each section of the bill that constitutes
a preemption of State or local government authority.
(2) FEDERALISM
IMPACT
ASSESSMENT.—(A)
For each bill of a public character reported by any
committee of the Senate or the House of Represent-
atives, and for each conference report thereon, the
Director shall prepare and submit to the committee
or conference committee a federalism impact assess-
ment that describes the preemptive impact of the bill
or conference report thereon on State and local gov-
ernments, including the estimated costs that would
be incurred by State and local governments as a re-
sult of its enactment.
(B) In the case of a bill or conference report
that authorizes a Federal grant program, the fed-
eralism impact assessment shall also identify any
provision that establishes a condition for receipt of
funds under the program that is not related to the
purposes of the program.
(c) ABSENCE OF COMMITTEE REPORT OR STATE-
MENT OF MANAGERS.—In the absence of a committee re-
port or joint explanatory statement in accordance with
subsection (a) accompanying a bill or conference report
thereon, respectively, the committee or conference com-
mittee shall report to the Senate and the House of Rep-
resentatives a statement described in subsection (a) before
consideration of the bill or conference report.
SEC. 9. RULES OF CONSTRUCTION RELATING TO PREEMP-
TION.
(a) STATUTES.—No Federal statute enacted after the
effective date of this Act shall preempt, in whole or in
part, any State or local government law, ordinance, or reg-
ulation, unless the statute expressly states that such pre-
emption is intended or unless there is a direct conflict be-
tween such statute and a State or local law, ordinance,
or regulation so the two cannot be reconciled or consist-
ently stand together.
(b) RULES.—No Federal rule issued after the effec-
tive date of this Act under any provision of law enacted
after that effective date shall preempt, in whole or in part,
any State or local government law, ordinance, or regula-
tion, unless the statute under which the rule is issued, or
another statute, expressly states that such preemption is
intended.
(c) FAVORABLE CONSTRUCTION.—Any ambiguity in
this Act, or in any other Federal rule issued or Federal
statute enacted after the date of the enactment of this
Act, shall be construed in favor of preserving the authority
of State and local governments.
SEC. 10. REPORTS ON PREEMPTION.
(a) OFFICE OF MANAGEMENT AND BUDGET INFOR-
MATION.—Promptly after the expiration of the second cal-
endar year beginning after the effective date of this Act,
and every 2 years thereafter, the Director of the Office
of Management and Budget shall submit to the Director
of the Congressional Budget Office information describing
each provision of interim final rules and final rules issued
during the preceding 2 calendar years that preempts State
or local government authority.
(b) CONGRESSIONAL RESEARCH SERVICE INFORMA-
TION.—Promptly after the expiration of the second cal-
endar year beginning after the effective date of this Act,
and every 2 years thereafter, the Director of the Congres-
sional Research Service shall submit to the Director of the
Congressional Budget Office information describing Fed-
eral and State court decisions issued during the preceding
2 calendar years that preempt State or local government
authority.
(c) CONGRESSIONAL BUDGET OFFICE REPORT.—
(1) IN GENERAL.—Not later than the adjourn-
ment sine die of each Congress, the Director of the
Congressional Budget Office shall submit to the
Congress a report on the extent of preemption of
State and local government authority—
(A) by Federal laws enacted during the
previous session of Congress; and
(B) by judicial or agency interpretations of
Federal statutes issued during such session,
using—
(i) information regarding agency rules
submitted by the Office of Management
and Budget under subsection (a); and
(ii) information regarding Federal and
State court decisions submitted by the Di-
rector of the Congressional Research Serv-
ice under subsection (b).
(2) CONTENT.—The report under paragraph
(1) shall contain—
(A) a cumulative list of Federal statutes
preempting, in whole or in part, State or local
powers;
(B) a summary of legislation enacted dur-
ing the previous session preempting, in whole or
in part, State or local government authority;
(C) a summary of rules of agencies pro-
mulgated during the previous session of Con-
gress preempting, in whole or in part, State or
local government authority; and
(D) a summary of Federal and State court
decisions issued during the previous session of
Congress preempting, in whole or in part, State
or local government authority.
(3) AVAILABILITY.—The Director shall make
the report under this subsection available to—
(A) each committee of the 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
through 
publication 
in 
the 
Congressional
Record and on the Internet.
SEC. 11. LIMITATION ON APPLICATION WITH RESPECT TO
PROHIBITIONS AGAINST DISCRIMINATION.
This Act shall not apply with respect to any section
of a bill, or any provision of a Federal regulation or stat-
ute, that establishes or enforces any statutory prohibition
against discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.
SEC. 12. EFFECTIVE DATE.
This Act shall take effect 90 days after the date of
the enactment of this Act.
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