Administrative Pay-As-You-Go Act of 2021

II 117TH CONGRESS 1ST SESSION S. 1482 To increase Government accountability for administrative actions by reinvigorating administrative Pay-As-You-Go. IN THE SENATE OF THE UNITED STATES APRIL 29, 2021 Mr. BRAUN introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To increase Government accountability for administrative actions by reinvigorating administrative Pay-As-You-Go. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Administrative Pay- 4 As-You-Go Act of 2021’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 (1) the term ‘‘administrative action’’ includes 8 the issuance of a rule, demonstration, program no- 9 tice, or guidance by an agency; 10 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 1482 IS (2) the term ‘‘agency’’— 1 (A) means— 2 (i) an ‘‘Executive agency’’, as defined 3 under section 105 of title 5, United States 4 Code; or 5 (ii) a ‘‘military department’’, as de- 6 fined under section 102 of title 5, United 7 States Code; and 8 (B) does not include the Government Ac- 9 countability Office; 10 (3) the term ‘‘covered discretionary administra- 11 tive action’’ means a discretionary administrative ac- 12 tion that would effect direct spending; 13 (4) the term ‘‘direct spending’’ has the meaning 14 given that term in section 250(c) of the Balanced 15 Budget and Emergency Deficit Control Act of 1985 16 (2 U.S.C. 900(c)); 17 (5) the term ‘‘Director’’ means the Director of 18 the Office of Management and Budget; 19 (6) the term ‘‘discretionary administrative ac- 20 tion’’— 21 (A) means any administrative action that 22 is not required by statute; and 23 (B) includes an administrative action re- 24 quired by statute for which an agency has dis- 25 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 1482 IS cretion in the manner in which to implement 1 the administrative action; and 2 (7) the term ‘‘increase direct spending’’ means 3 that the amount of direct spending would increase 4 relative to— 5 (A) the most recently submitted projection 6 of the amount of direct spending under current 7 law under— 8 (i) the budget of the President sub- 9 mitted under section 1105 of title 31, 10 United States Code; or 11 (ii) the supplemental summary of the 12 budget submitted under section 1106, of 13 title 31, United States Code; 14 (B) with respect to a discretionary admin- 15 istrative action that is incorporated into the ap- 16 plicable projection described in subparagraph 17 (A) and for which a proposal has not been sub- 18 mitted under section 4(a)(2)(A), a projection of 19 the amount of direct spending if no administra- 20 tive action were taken; or 21 (C) with respect to a discretionary admin- 22 istrative action described in paragraph (6)(B), 23 a projection of the amount of direct spending 24 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 1482 IS under the least costly implementation option 1 that meets the requirements under the statute. 2 SEC. 3. FINDINGS; PURPOSES. 3 (a) FINDINGS.—Congress finds the following: 4 (1) In May 2005, the Office of Management 5 and Budget implemented a budget-neutrality re- 6 quirement for executive branch administrative ac- 7 tions affecting direct spending. 8 (2) This mechanism, commonly referred to as 9 ‘‘Administrative Pay-As-You-Go’’, requires each 10 agency to include 1 or more proposals for reducing 11 direct spending whenever an agency proposes to un- 12 dertake a discretionary administrative action that 13 would increase direct spending. 14 (3) In practice, however, agencies have applied 15 this requirement with varying degrees of stringency, 16 sometimes resulting in higher direct spending. 17 (b) PURPOSES.—The purposes of this Act are to— 18 (1) institutionalize and reinvigorate Administra- 19 tive Pay-As-You-Go to keep direct spending under 20 control; 21 (2) control Federal spending and restore the 22 Nation’s fiscal security; and 23 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 1482 IS (3) ensure that agencies consider the costs of 1 their administrative actions, take steps to offset 2 those costs, and curtail costly administrative actions. 3 SEC. 4. REQUIREMENTS FOR ADMINISTRATIVE ACTIONS 4 THAT EFFECT DIRECT SPENDING. 5 (a) DISCRETIONARY ADMINISTRATIVE ACTIONS.— 6 (1) IN GENERAL.—Before an agency may un- 7 dertake any covered discretionary administrative ac- 8 tion, the head of the agency shall submit to the Di- 9 rector for review written notice regarding the pro- 10 posed covered discretionary administrative action, 11 which shall include an estimate of the budgetary ef- 12 fects of the proposed covered discretionary adminis- 13 trative action. 14 (2) INCREASING DIRECT SPENDING.— 15 (A) IN GENERAL.—If an agency proposes 16 to take a covered discretionary administrative 17 action that would increase direct spending, the 18 written notice submitted by the head of the 19 agency under paragraph (1) shall include a pro- 20 posal to undertake 1 or more other administra- 21 tive actions that would provide a reduction in 22 direct spending comparable to the increase in 23 direct spending attributable to the covered dis- 24 cretionary administrative action. 25 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 1482 IS (B) REVIEW.— 1 (i) IN GENERAL.—The Director shall 2 have the discretion to determine whether 3 the reduction in direct spending proposed 4 by an agency under subparagraph (A) is 5 comparable to the increase in direct spend- 6 ing attributable to the covered discre- 7 tionary administrative action to which the 8 proposal relates, taking into account the 9 magnitude of the reduction and the in- 10 crease and any other factors the Director 11 determines appropriate. 12 (ii) NO OFFSET.—If the written notice 13 regarding a proposed covered discretionary 14 administrative action that would increase 15 direct spending does not include a proposal 16 to offset the increased direct spending, the 17 Director shall return the proposal to the 18 agency for resubmission in accordance with 19 this Act. 20 (b) NONDISCRETIONARY ACTIONS.—If an agency de- 21 termines that a proposed administrative action that would 22 increase direct spending is required by statute and there- 23 fore is not a covered discretionary administrative action, 24 before the agency takes further action with respect to the 25 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 1482 IS proposed administrative action, the head of the agency 1 shall— 2 (1) submit to the Director a written opinion by 3 the general counsel of the agency, or the equivalent 4 employee of the agency, explaining that legal conclu- 5 sion; and 6 (2) consult with the Director regarding imple- 7 mentation of the proposed administrative action. 8 (c) PROJECTIONS.—Any projection for purposes of 9 this Act shall be conducted in accordance with Office of 10 Management and Budget Circular A–11, or any successor 11 thereto. 12 SEC. 5. ISSUANCE OF ADMINISTRATIVE GUIDANCE. 13 Not later than 90 days after the date of enactment 14 of this Act, the Director shall issue instructions regarding 15 the implementation of this Act, including how proposed 16 covered discretionary administrative actions that increase 17 direct spending and non-tax receipts will be evaluated. 18 SEC. 6. WAIVER. 19 The Director may waive the requirements of section 20 4 if the Director concludes that the waiver is necessary— 21 (1) for the delivery of essential services; 22 (2) for effective program delivery; or 23 VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 1482 IS (3) because a waiver is otherwise warranted by 1 the public interest. 2 Æ VerDate Sep 11 2014 21:56 May 24, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6301 E:\BILLS\S1482.IS S1482 pbinns on DSKJLVW7X2PROD with BILLS