[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 1865 Reported in Senate (RS)]

<DOC>





                                                       Calendar No. 192
118th CONGRESS
  1st Session
                                S. 1865

                          [Report No. 118-89]

To direct agencies to be transparent when using automated and augmented 
systems to interact with the public or make critical decisions, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              June 7, 2023

 Mr. Peters (for himself, Mr. Braun, and Mr. Lankford) introduced the 
 following bill; which was read twice and referred to the Committee on 
               Homeland Security and Governmental Affairs

                            August 22, 2023

 Reported under authority of the order of the Senate of July 27, 2023, 
                    by Mr. Peters, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 A BILL


 
To direct agencies to be transparent when using automated and augmented 
systems to interact with the public or make critical decisions, and for 
                            other purposes.

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

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Transparent Automated 
Governance Act'' or the ``TAG Act''.</DELETED>

<DELETED>SEC. 2. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Agency.--The term ``agency'' has the meaning 
        given the term in section 3502 of title 44, United States 
        Code.</DELETED>
        <DELETED>    (2) Augmented critical decision process.--The term 
        ``augmented critical decision process'' means the use by an 
        agency, or by a third party on behalf of the agency, of an 
        automated system to determine or substantially influence the 
        outcomes of critical decisions.</DELETED>
        <DELETED>    (3) Automated system.--The term ``automated 
        system''--</DELETED>
                <DELETED>    (A) means a set of computational processes 
                derived from statistics or artificial intelligence 
                techniques, or that otherwise rely on data about 
                specific individuals or groups, to substantially 
                influence the outcome of critical decisions, including 
                computational processes that stand alone or are 
                embedded within another process, system, or 
                application, including paper-based processes; 
                and</DELETED>
                <DELETED>    (B) does not include computational 
                processes or infrastructure the function of which is 
                not directly related to influencing or determining the 
                outcome of critical decisions.</DELETED>
        <DELETED>    (4) Critical decision.--The term ``critical 
        decision'' means an agency determination, including the 
        assignment of a score or classification, related to the status, 
        rights, property, or well-being of specific individuals or 
        groups, the outcome of which--</DELETED>
                <DELETED>    (A) is likely to meaningfully differ from 
                one individual or group to another; and</DELETED>
                <DELETED>    (B) meaningfully affects access to, or the 
                cost, terms, or availability of--</DELETED>
                        <DELETED>    (i) education and vocational 
                        training;</DELETED>
                        <DELETED>    (ii) employment;</DELETED>
                        <DELETED>    (iii) essential utilities, 
                        including electricity, heat, water, and 
                        internet;</DELETED>
                        <DELETED>    (iv) transportation;</DELETED>
                        <DELETED>    (v) any benefits or assistance 
                        under any Federal public assistance program or 
                        under any State or local public assistance 
                        program financed in whole or in part with 
                        Federal funds;</DELETED>
                        <DELETED>    (vi) financial services, including 
                        access to credit or insurance;</DELETED>
                        <DELETED>    (vii) asylum and immigration 
                        services;</DELETED>
                        <DELETED>    (viii) healthcare;</DELETED>
                        <DELETED>    (ix) housing, lodging, or public 
                        accommodations; and</DELETED>
                        <DELETED>    (x) any other service, program, or 
                        opportunity a determination about which would 
                        have a legal, material, or significant effect 
                        on the life of an individual, as determined by 
                        the Director.</DELETED>
        <DELETED>    (5) Director.--The term ``Director'' means the 
        Director of the Office of Management and Budget.</DELETED>
        <DELETED>    (6) Plain language.--The term ``plain language'' 
        has the meaning given the term in section 1311(e)(3)(B) of the 
        Patient Protection and Affordable Care Act (42 U.S.C. 
        18031(e)(3)(B)).</DELETED>
        <DELETED>    (7) Transparent automated governance guidance.--
        The term ``transparent automated governance guidance'' means 
        the guidance issued by the Director pursuant to section 
        3(a).</DELETED>

<DELETED>SEC. 3. TRANSPARENT AUTOMATED GOVERNANCE GUIDANCE.</DELETED>

<DELETED>    (a) In General.--Not later than 180 days after the date of 
enactment of this Act, the Director shall issue guidance that--
</DELETED>
        <DELETED>    (1) is consistent with relevant legal authorities 
        relating to privacy, civil rights, and civil liberties 
        protections; and</DELETED>
        <DELETED>    (2) requires agencies to provide disclosure and 
        opportunity for appeal when using certain automated systems and 
        augmented critical decision processes.</DELETED>
<DELETED>    (b) Guidance.--The transparent automated governance 
guidance issued under subsection (a) shall include--</DELETED>
        <DELETED>    (1) an identification by the Director of any 
        additional services, programs, or opportunities relating to 
        critical decisions described in section 2(4)(B)(x), if 
        appropriate, for use by agencies with respect to the 
        requirements under this Act;</DELETED>
        <DELETED>    (2) a list of automated systems that may be used 
        in augmented critical decision processes, that, as determined 
        by the Director, are not subject to the requirements of this 
        Act;</DELETED>
        <DELETED>    (3) with respect to automated systems that 
        contribute to augmented critical decision processes and 
        interact with the public, guidance for how agencies shall 
        design, develop, or update those automated systems to provide 
        plain language notice to individuals not later than the time 
        and at the place of interaction with such an automated system 
        that they are interacting with such an automated 
        system;</DELETED>
        <DELETED>    (4) the proper contents of the notice described in 
        paragraph (3);</DELETED>
        <DELETED>    (5) examples of what the notice described in 
        paragraph (3) could look like in practice;</DELETED>
        <DELETED>    (6) with respect to augmented critical decision 
        processes, guidance for how agencies shall provide plain 
        language notice to individuals not later than the time a 
        critical decision is issued to an individual that a critical 
        decision concerning the individual was made using an augmented 
        critical decision process;</DELETED>
        <DELETED>    (7) the proper contents of the notice described in 
        paragraph (6);</DELETED>
        <DELETED>    (8) examples of what the notice described in 
        paragraph (6) could look like in practice;</DELETED>
        <DELETED>    (9) guidance for how agencies shall establish an 
        appeals process for critical decisions made by an augmented 
        critical decision process in which an individual is harmed as a 
        direct result of the use of an automated system in the 
        augmented critical decision process;</DELETED>
        <DELETED>    (10) with respect to critical decisions made by an 
        augmented critical decision process, guidance for how agencies 
        should provide individuals with the opportunity for an 
        alternative review, as appropriate, by an individual working 
        for or on behalf of the agency with respect to the critical 
        decision, independent of the augmented critical decision 
        process; and</DELETED>
        <DELETED>    (11) criteria for information that each agency is 
        required to track and collect relating to issues that arise 
        during the use of augmented critical decision processes--
        </DELETED>
                <DELETED>    (A) to ensure that the information 
                collected can be used to determine whether each 
                automated system and augmented critical decision 
                process covered by this Act is accurate, reliable, and, 
                to the greatest extent practicable, explainable; 
                and</DELETED>
                <DELETED>    (B) that the agency shall make accessible 
                for use by the agency, the Comptroller General of the 
                United States, and Congress.</DELETED>
<DELETED>    (c) Consultation.--In developing the transparent automated 
governance guidance, the Director shall solicit input from experts 
from--</DELETED>
        <DELETED>    (1) other agencies, including the National 
        Institute for Science and Technology, the Office of Science and 
        Technology Policy, and the Government Accountability 
        Office;</DELETED>
        <DELETED>    (2) academia;</DELETED>
        <DELETED>    (3) the private sector; and</DELETED>
        <DELETED>    (4) the nonprofit sector, including experts in 
        civil rights and civil liberties.</DELETED>
<DELETED>    (d) Artificial Intelligence Guidance.--The guidance 
required by section 104 of the AI in Government Act of 2020 (40 U.S.C. 
11301 note) may be used to satisfy the requirement for the transparent 
automated governance guidance with respect to relevant automated 
systems and augmented critical decision processes, or a subset thereof, 
if such guidance addresses each requirement under subsection (b) of 
this section with respect to the automated system or augmented critical 
decision process.</DELETED>
<DELETED>    (e) Updates.--Not later than 2 years after the date on 
which the Director issues the transparent automated governance 
guidance, and biennially thereafter, the Director shall issue updates 
to the guidance.</DELETED>

<DELETED>SEC. 4. AGENCY IMPLEMENTATION.</DELETED>

<DELETED>    (a) Agency Implementation of Transparent Automated 
Governance Guidance.--Not later than 270 days after the date on which 
the Director issues the transparent automated governance guidance, the 
head of each agency shall implement the transparent automated 
governance guidance to the extent that implementation does not require 
rulemaking.</DELETED>
<DELETED>    (b) Comptroller General Report.--Not later than 2 years 
after the date of enactment of this Act, and biannually thereafter, the 
Comptroller General of the United States shall review agency compliance 
with this Act and submit to the Committee on Homeland Security and 
Governmental Affairs of the Senate and the Committee on Oversight and 
Accountability of the House of Representatives a report with findings 
and recommendations.</DELETED>

<DELETED>SEC. 5. SUNSET.</DELETED>

<DELETED>    Beginning on the date that is 10 years after the date of 
enactment of this Act, this Act shall have no force or 
effect.</DELETED>

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Transparent Automated Governance 
Act'' or the ``TAG Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Agency.--The term ``agency'' has the meaning given the 
        term in section 3502 of title 44, United States Code.
            (2) Artificial intelligence.--The term ``artificial 
        intelligence'' has the meaning given the term in section 238(g) 
        of the John S. McCain National Defense Authorization Act for 
        Fiscal Year 2019 (10 U.S.C. note prec. 4061; Public Law 115-
        232).
            (3) Augmented critical decision process.--The term 
        ``augmented critical decision process'' means the use by an 
        agency, or by a third party on behalf of the agency, of an 
        automated system to determine or substantially influence the 
        outcomes of critical decisions.
            (4) Automated system.--The term ``automated system''--
                    (A) means a set of computational processes derived 
                from statistics or artificial intelligence techniques, 
                or that otherwise rely on data about specific 
                individuals or groups, to substantially influence the 
                outcome of critical decisions, including computational 
                processes that stand alone or are embedded within 
                another process, system, or application, including 
                paper-based processes; and
                    (B) does not include computational processes or 
                infrastructure the function of which is not directly 
                related to influencing or determining the outcome of 
                critical decisions.
            (5) Critical decision.--The term ``critical decision'' 
        means an agency determination, including the assignment of a 
        score or classification, related to the status, rights, 
        property, or wellbeing of specific individuals or groups, the 
        outcome of which--
                    (A) is likely to meaningfully differ from one 
                individual or group to another; and
                    (B) meaningfully affects access to, or the cost, 
                terms, or availability of--
                            (i) education and vocational training;
                            (ii) employment;
                            (iii) essential utilities, including 
                        electricity, heat, water, and internet;
                            (iv) transportation;
                            (v) any benefits or assistance under any 
                        Federal public assistance program or under any 
                        State or local public assistance program 
                        financed in whole or in part with Federal 
                        funds;
                            (vi) financial services, including access 
                        to credit or insurance;
                            (vii) asylum and immigration services;
                            (viii) healthcare;
                            (ix) housing, lodging, or public 
                        accommodations; and
                            (x) any other service, program, or 
                        opportunity a determination about which would 
                        have a legal, material, or significant effect 
                        on the life of an individual, as determined by 
                        the Director.
            (6) Director.--The term ``Director'' means the Director of 
        the Office of Management and Budget.
            (7) Plain language.--The term ``plain language'' has the 
        meaning given the term in section 1311(e)(3)(B) of the Patient 
        Protection and Affordable Care Act (42 U.S.C. 18031(e)(3)(B)).
            (8) Transparent automated governance guidance.--The term 
        ``transparent automated governance guidance'' means the 
        guidance issued by the Director pursuant to section 3(a).

SEC. 3. TRANSPARENT AUTOMATED GOVERNANCE GUIDANCE.

    (a) In General.--Not later than 270 days after the date of 
enactment of this Act, the Director shall issue guidance that--
            (1) is consistent with relevant legal authorities relating 
        to privacy, civil rights, and civil liberties protections; and
            (2) requires agencies to provide disclosure and opportunity 
        for appeal when using certain automated systems and augmented 
        critical decision processes.
    (b) Guidance.--The transparent automated governance guidance issued 
under subsection (a) shall include--
            (1) an identification by the Director of any additional 
        services, programs, or opportunities relating to critical 
        decisions described in section 2(5)(B)(x), if appropriate, for 
        use by agencies with respect to the requirements under this 
        Act;
            (2) a list of automated systems that may be used in 
        augmented critical decision processes, that, as determined by 
        the Director, are not subject to the requirements of this Act;
            (3) with respect to automated systems that contribute to 
        augmented critical decision processes and interact with the 
        public, guidance for how agencies shall design, develop, 
        procure, or update those automated systems to provide plain 
        language notice to individuals not later than the time and at 
        the place of interaction with such an automated system that 
        they are interacting with such an automated system;
            (4) the proper contents of the notice described in 
        paragraph (3);
            (5) examples of what the notice described in paragraph (3) 
        could look like in practice;
            (6) with respect to augmented critical decision processes, 
        guidance for how agencies shall provide plain language notice 
        to individuals not later than the time a critical decision is 
        issued to an individual that a critical decision concerning the 
        individual was made using an augmented critical decision 
        process;
            (7) the proper contents of the notice described in 
        paragraph (6);
            (8) examples of what the notice described in paragraph (6) 
        could look like in practice;
            (9) guidance for how agencies shall establish an appeals 
        process for critical decisions made by an augmented critical 
        decision process in which an individual is harmed as a direct 
        result of the use of an automated system in the augmented 
        critical decision process;
            (10) with respect to critical decisions made by an 
        augmented critical decision process, guidance for how agencies 
        should provide individuals with the opportunity for an 
        alternative review, as appropriate, by an individual working 
        for or on behalf of the agency with respect to the critical 
        decision, independent of the augmented critical decision 
        process; and
            (11) criteria for information that each agency is required 
        to track and collect relating to issues that arise during the 
        use of augmented critical decision processes--
                    (A) to ensure that the information collected can be 
                used to determine whether each automated system and 
                augmented critical decision process covered by this Act 
                is accurate, reliable, and, to the greatest extent 
                practicable, explainable; and
                    (B) that the agency shall make accessible for use 
                by the agency, the Comptroller General of the United 
                States, and Congress.
    (c) Public Comment.--Not later than 180 days after the date of 
enactment of this Act, the Director shall make a preliminary version of 
the transparent automated governance guidance available for public 
comment for a period of 30 days.
    (d) Consultation.--In developing the transparent automated 
governance guidance, the Director shall consider soliciting input 
from--
            (1) the Government Accountability Office;
            (2) the General Services Administration, including on the 
        topic of user experience;
            (3) the private sector; and
            (4) the nonprofit sector, including experts in privacy, 
        civil rights, and civil liberties.
    (e) Artificial Intelligence Guidance.--The guidance required by 
section 104 of the AI in Government Act of 2020 (40 U.S.C. 11301 note) 
may be used to satisfy the requirement for the transparent automated 
governance guidance with respect to relevant automated systems and 
augmented critical decision processes, or a subset thereof, if such 
guidance addresses each requirement under subsection (b) of this 
section with respect to the automated system or augmented critical 
decision process.
    (f) Updates.--Not later than 2 years after the date on which the 
Director issues the transparent automated governance guidance, and 
biennially thereafter, the Director shall issue updates to the 
guidance.

SEC. 4. AGENCY IMPLEMENTATION.

    (a) Agency Implementation of Transparent Automated Governance 
Guidance.--Not later than 270 days after the date on which the Director 
issues the transparent automated governance guidance, the head of each 
agency shall implement the transparent automated governance guidance to 
the extent that implementation does not require rulemaking.
    (b) Comptroller General Report.--Not later than 2 years after the 
date of enactment of this Act, and biannually thereafter, the 
Comptroller General of the United States shall review agency compliance 
with this Act and submit to the Committee on Homeland Security and 
Governmental Affairs of the Senate and the Committee on Oversight and 
Accountability of the House of Representatives a report with findings 
and recommendations.

SEC. 5. SUNSET.

    Beginning on the date that is 10 years after the date of enactment 
of this Act, this Act shall have no force or effect.
                                                       Calendar No. 192

118th CONGRESS

  1st Session

                                S. 1865

                          [Report No. 118-89]

_______________________________________________________________________

                                 A BILL

To direct agencies to be transparent when using automated and augmented 
systems to interact with the public or make critical decisions, and for 
                            other purposes.

_______________________________________________________________________

                            August 22, 2023

 Reported under authority of the order of the Senate of July 27, 2023, 
                           with an amendment