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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
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