[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2245 Introduced in House (IH)]







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 
 Committee 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 
           within 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 Representatives 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 expressly 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, the Congress has enacted 
        statutes and Federal agencies have promulgated rules that 
        expressly preempt State and local government authority and 
        describe the scope of the preemption.
            (4) In addition to statutes and rules that expressly 
        preempt State and local government authority, many other 
        statutes and rules that lack an express 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 uncertainty for State and local 
        governments, leaving the presence or scope of preemption to be 
        litigated and determined by the Federal judiciary, producing 
        results sometimes contrary to or beyond the intent of the 
        Congress.
            (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 the following:
            (1) To promote and preserve the integrity and effectiveness 
        of our federalist system of government.
            (2) To set forth principles governing the interpretation of 
        congressional intent regarding preemption of State and local 
        government authority by Federal laws and rules.
            (3) To recognize the partnership between the Federal 
        Government and State and local governments in the 
        implementation of certain Federal programs.
            (4) To establish a reporting requirement to monitor the 
        incidence of Federal statutory, regulatory, and judicial 
        preemption.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Definitions in 5 u.s.c. 551.--The definitions under 
        section 551 of title 5, United States Code, shall apply.
            (2) Bill.--The term ``bill'' includes a joint resolution.
            (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 organizations 
                that represent such officials:
                            (i) The National Governors' Association.
                            (ii) The National Conference of State 
                        Legislatures.
                            (iii) The Council of State Governments.
                            (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 government; 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-Determination 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 Personal Property Acquired 
With Federal Funds.--A State shall use, manage, and dispose of personal 
property acquired with covered Federal grant funds in accordance 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 procuring any personal 
property or service with covered Federal grant funds, a State shall 
follow the same requirements and procedures that apply under the laws 
of the State governing State procurement with State funds, subject to 
any requirement that expressly applies under any other Federal statute.
    (d) Definitions.--In this section:
            (1) Covered federal grant funds defined.--The term 
        ``covered Federal grant funds'' means amounts provided as 
        Federal financial assistance, 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 enactment of this 
        Act.
            (2) Personal property.--The term ```personal 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, unless the performance measures for the activity 
are determined in cooperation with public officials.''.

SEC. 7. REQUIREMENTS FOR AGENCY RULEMAKING.

    (a) Notice and Consultation With Potentially 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 published, 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 Federalism Impacts.--
            (1) In general.--The head of an agency shall--
                    (A) publish with each proposed rule issued by the 
                agency a proposed federalism impact assessment under 
                paragraph (2);
                    (B) publish with each interim final rule issued by 
                the agency a proposed federalism impact 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 proposed or final 
        federalism impact assessment under this subsection shall 
        include with respect to the proposed, interim final, or final 
        rule concerned an identification of--
                    (A) any provision of the rule that is a preemption 
                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 preemption;
                    (D) any provision of the rule that establishes 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 intergovernmental 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 incurred by 
                state and local governments as a result of issuance of 
                the rule; and
                    (H) the extent of the agency's consultations with 
                public officials who may potentially be affected by the 
                rule.
    (c) Publication.--The head of an agency shall include, in a 
separately identified part of the preamble to each proposed rule, 
interim final rule, and final rule published 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 explanatory statement accompanying a 
conference report on any such bill, shall include a statement that--
            (1) identifies each section of the bill or conference 
        report that constitutes an express preemption of State or local 
        government authority, or asserts 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 preemption; and
            (4) includes the federalism impact assessment by the 
        Director under subsection (b).
    (b) Federalism Impact Assessment by Congressional Budget Office.--
            (1) Provision of bill or conference report to director.--
        When a committee of the Senate 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 Representatives, and for each conference report 
        thereon, the Director shall prepare and submit to the committee 
        or conference committee a federalism impact assessment that 
        describes the preemptive impact of the bill or conference 
        report thereon on State and local governments, including the 
        estimated costs that would be incurred by State and local 
        governments as a result of its enactment.
            (B) In the case of a bill or conference report that 
        authorizes a Federal grant program, the federalism 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 Statement of Managers.--In the 
absence of a committee report or joint explanatory statement in 
accordance with subsection (a) accompanying a bill or conference report 
thereon, respectively, the committee or conference committee shall 
report to the Senate and the House of Representatives a statement 
described in subsection (a) before consideration of the bill or 
conference report.

SEC. 9. RULES OF CONSTRUCTION RELATING TO PREEMPTION.

    (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 regulation, unless the statute expressly 
states that such preemption is intended or unless there is a direct 
conflict between such statute and a State or local law, ordinance, or 
regulation so the two cannot be reconciled or consistently stand 
together.
    (b) Rules.--No Federal rule issued after the effective 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 regulation, 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 Information.--Promptly after 
the expiration of the second calendar 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 Information.--Promptly after the 
expiration of the second calendar year beginning after the effective 
date of this Act, and every 2 years thereafter, the Director of the 
Congressional Research Service shall submit to the Director of the 
Congressional Budget Office information describing Federal 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 adjournment 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 Director 
                        of the Congressional Research Service 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 during the 
                previous session preempting, in whole or in part, State 
                or local government authority;
                    (C) a summary of rules of agencies promulgated 
                during the previous session of Congress 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 statute, 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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