What This Bill Does
This bill requires federal agencies to submit their plans to the Office of Management and Budget before taking administrative actions that would increase government spending. If an agency wants to take an action that increases spending, it must also propose other actions that would reduce spending by the same amount to keep the budget balanced.
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Who It Affects
Federal agencies (executive agencies and military departments, but not the Government Accountability Office) and the Office of Management and Budget.
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Key Provisions
- Agencies must give written notice to the Director of the Office of Management and Budget before taking any discretionary administrative action that would affect government spending, including an estimate of how much money the action would cost (Sec. 4(a)(1))
- If a discretionary administrative action would increase direct spending, the agency must propose one or more other actions that would reduce spending by a similar amount (Sec. 4(a)(2)(A))
- The Director decides whether the proposed spending reduction is comparable to the spending increase, considering the size of each and any other relevant factors (Sec. 4(a)(2)(B)(i))
- If an agency claims a required spending-increase action is mandated by law, it must submit a written legal opinion from its general counsel to the Director and consult with the Director about how to carry it out (Sec. 4(b))
- The Director must issue instructions on how to implement this law within 90 days of it becoming law (Sec. 5)
- The Director may waive these requirements if necessary for delivering essential services, effective program delivery, or the public interest (Sec. 6)
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What Changes
Agencies can no longer take discretionary administrative actions that increase government spending without first proposing how to offset that spending increase. Agencies must document and justify their actions to the Office of Management and Budget before proceeding.
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Important Definitions
**Administrative action:** The issuance of a rule, demonstration, program notice, or guidance by an agency (Sec. 2(1))
**Direct spending:** Not defined in this bill text; refers to an existing definition in the Balanced Budget and Emergency Deficit Control Act of 1985 (Sec. 2(4))
**Discretionary administrative action:** Any administrative action not required by law, or an administrative action required by law where the agency has choices in how to carry it out (Sec. 2(6))
**Covered discretionary administrative action:** A discretionary administrative action that would affect direct spending (Sec. 2(3))
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Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 1052
To increase Government accountability for administrative actions by
reinvigorating administrative Pay-As-You-Go.
IN THE SENATE OF THE UNITED STATES
MARCH 29, 2023
Mr. BRAUN (for himself, Ms. LUMMIS, and Mr. DAINES) introduced the fol-
lowing 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 2023’’.
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SEC. 2. DEFINITIONS.
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In this Act—
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(1) the term ‘‘administrative action’’ includes
8
the issuance of a rule, demonstration, program no-
9
tice, or guidance by an agency;
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•S 1052 IS
(2) the term ‘‘agency’’—
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(A) means—
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(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-
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fined under section 102 of title 5, United
7
States Code; and
8
(B) does not include the Government Ac-
9
countability Office;
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(3) the term ‘‘covered discretionary administra-
11
tive action’’ means a discretionary administrative ac-
12
tion that would effect direct spending;
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(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;
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(6) the term ‘‘discretionary administrative ac-
20
tion’’—
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(A) means any administrative action that
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is not required by statute; and
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(B) includes an administrative action re-
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quired by statute for which an agency has dis-
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•S 1052 IS
cretion in the manner in which to implement
1
the administrative action; and
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(7) the term ‘‘increase direct spending’’ means
3
that the amount of direct spending would increase
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relative to—
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(A) the most recently submitted projection
6
of the amount of direct spending under current
7
law under—
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(i) the budget of the President sub-
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mitted under section 1105 of title 31,
10
United States Code; or
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(ii) the supplemental summary of the
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budget submitted under section 1106, of
13
title 31, United States Code;
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(B) with respect to a discretionary admin-
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istrative action that is incorporated into the ap-
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plicable projection described in subparagraph
17
(A) and for which a proposal has not been sub-
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mitted under section 4(a)(2)(A), a projection of
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the amount of direct spending if no administra-
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tive action were taken; or
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(C) with respect to a discretionary admin-
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istrative action described in paragraph (6)(B),
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a projection of the amount of direct spending
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under the least costly implementation option
1
that meets the requirements under the statute.
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SEC. 3. FINDINGS; PURPOSES.
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(a) FINDINGS.—Congress finds the following:
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(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.
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(b) PURPOSES.—The purposes of this Act are to—
18
(1) institutionalize and reinvigorate Administra-
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tive Pay-As-You-Go to keep direct spending under
20
control;
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(2) control Federal spending and restore the
22
Nation’s fiscal security; and
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(3) ensure that agencies consider the costs of
1
their administrative actions, take steps to offset
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those costs, and curtail costly administrative actions.
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SEC. 4. REQUIREMENTS FOR ADMINISTRATIVE ACTIONS
4
THAT EFFECT DIRECT SPENDING.
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(a) DISCRETIONARY ADMINISTRATIVE ACTIONS.—
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(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-
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rector for review written notice regarding the pro-
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posed covered discretionary administrative action,
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which shall include an estimate of the budgetary ef-
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fects of the proposed covered discretionary adminis-
13
trative action.
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(2) INCREASING DIRECT SPENDING.—
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(A) IN GENERAL.—If an agency proposes
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to take a covered discretionary administrative
17
action that would increase direct spending, the
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written notice submitted by the head of the
19
agency under paragraph (1) shall include a pro-
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posal to undertake 1 or more other administra-
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tive actions that would provide a reduction in
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direct spending comparable to the increase in
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direct spending attributable to the covered dis-
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cretionary administrative action.
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(B) REVIEW.—
1
(i) IN GENERAL.—The Director shall
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have the discretion to determine whether
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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-
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tionary administrative action to which the
8
proposal relates, taking into account the
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magnitude of the reduction and the in-
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crease and any other factors the Director
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determines appropriate.
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(ii) NO OFFSET.—If the written notice
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regarding a proposed covered discretionary
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administrative action that would increase
15
direct spending does not include a proposal
16
to offset the increased direct spending, the
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Director shall return the proposal to the
18
agency for resubmission in accordance with
19
this Act.
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(b) NONDISCRETIONARY ACTIONS.—If an agency de-
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termines that a proposed administrative action that would
22
increase direct spending is required by statute and there-
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fore is not a covered discretionary administrative action,
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before the agency takes further action with respect to the
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•S 1052 IS
proposed administrative action, the head of the agency
1
shall—
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(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.
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(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.
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SEC. 5. ISSUANCE OF ADMINISTRATIVE GUIDANCE.
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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.
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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
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(3) because a waiver is otherwise warranted by
1
the public interest.
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Æ
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