TREASURY DIRECTIVE: 28-02

Date: July 26, 1990

Sunset Review: TBD

Expiration Date: TBD

SUBJECT: Legislative Procedures

1. PURPOSE. This directive establishes procedures and assigns responsibilities that govern Departmental review and coordination of the following documents and transmittals that express official legislative views of the Department of the Treasury: proposed legislation, proposed Executive Orders (E.O.), legislative reports, legislative comments, legislative programs, and congressional testimony.

2. POLICY. It is the policy of the Department of the Treasury that draft legislation, proposed E.O.'s, legislative reports, legislative comments, legislative programs, and congressional testimony prepared by offices and bureaus express the policy of the Department, are consistent with the policy of the Administration, and are legally sufficient. Consistent with law, all transmittals shall be fully reviewed and coordinated within the Department and, as appropriate, within the Executive Branch, prior to their transmittal, presentation, release or other dissemination.

3. SCOPE.

a. General. This directive applies, without exception, to all offices and bureaus of the Department of the Treasury.

b. Congressional Relations. Nothing in this directive shall be interpreted to apply to the conduct of the congressional relations program as described in Treasury Directive (TD) 27-09, "Organization and Functions of the Office of the Assistant Secretary (Legislative Affairs)."

c. Informal Legislative Contacts. Nothing in this directive shall be interpreted as prohibiting any office or bureau from entering into or engaging in informal discussions with any department or agency, the Congress, or any person, organization or group, with respect to any legislative matter.

4. DEFINITIONS. Terms used in this directive are defined in the attachment

5. PROCEDURES.

a. General.

(1) Except as provided in paragraph 5.a.(2), no draft legislation, proposed E.0., legislative report, legislative comment, Treasury testimony, or item prepared for inclusion in a legislative program that purports to represent the official views of the Department or any Treasury office or bureau shall be transmitted or presented to the Office of Management and Budget (OMB), any department or agency of the Federal Government, or the Congress, or otherwise made available outside the Department, until review and coordination have been completed in accordance with paragraph 6.

(2) In carrying out their responsibilities under this directive, the Office of the Associate General Counsel (Legislation, Litigation and Regulation) (LLR), the Office of the Executive Secretary, and the Office of Tax Policy may, with respect to any document that is subject to Executive Branch coordination by OMB prior to transmittal to the Congress or other dissemination, initiate coordination with OMB prior to the completion of Departmental review and coordination required by paragraph 6.

b. Legislative Reports, Legislative Comments, and Proposed E.O.'s, except those relating to tax legislation prepared by the Office of Tax Policy, shall be transmitted to LLR for review and coordination.

c. Draft Legislation, except draft tax legislation prepared by the Office of Tax Policy, shall be transmitted to LLR for review and coordination.

d. Treasure Testimony shall be prepared under the direction of the Assistant Secretary (Legislative Affairs) and, except as provided in paragraph 6.b.(2) with respect to testimony relating to tax legislation prepared by the Office of Tax policy, shall be transmitted to the Office of the Executive Secretary for review and coordination.

e. Legislative Program submissions shall be prepared and reviewed by offices and bureaus as directed by LLR.

6. REVIEW AND COORDINATION.

a. Draft Legislation, Proposed E.0.'s, and Legislative Reports, Comments, and Programs.

(1) LLR. Except as provided in paragraph 6.a.(2), LLR shall:

(a) obtain all clearances and/or comments from appropriate offices and bureaus, resolve conflicting views, and coordinate with OMB any required Executive Branch review; and

(b) obtain clearance from the Executive Secretary for all legislative reports and draft legislation to be transmitted to the Congress, and for legislative reports to be transmitted to OMB recommending that the President veto an enrolled bill.

(2) Office of Tax Policy. With respect to draft tax legislation and legislative reports and comments prepared by the Office of Tax Policy relating to tax legislation, the Office of Tax Policy shall:

(a) obtain all clearances and/or comments from appropriate offices and bureaus, resolve conflicting views, and coordinate with OMB any required Executive Branch review;

(b) obtain clearance from the Executive Secretary prior to transmitting legislative reports or draft legislation to the Congress pursuant to paragraph 7.b., or legislative reports to OMB recommending that the president veto an enrolled bill; and

(c) promptly provide LLR with a copy of any document for which clearance is initiated under this paragraph.

(3) Offices and Bureaus. Offices and bureaus shall provide clearances and/or comments to LLR or the Office of Tax Policy, as appropriate, on a timely basis and in the manner prescribed by LLR or the Office of Tax Policy.

b. Treasury Testimony.

(1) Executive Secretary.

(a) General. Except as provided in paragraphs 6.b.(1)(b) and 6.b.(2), the Office of the Executive Secretary shall obtain all appropriate clearances within the Department and coordinate with OMB any required Executive Branch review.

(b) Referral to LLR. The Office of the Executive Secretary shall refer to LLR for review and coordination pursuant to paragraph 6.a.(1), any Treasury testimony that transmits or includes draft legislation or a legislative report (other than testimony prepared by the Office of Tax Policy that transmits or concerns tax legislation).

(2) Office of Tax Policy. The Office of Tax Policy, with respect to testimony concerning tax legislation prepared by the Office of Tax Policy, shall:

(a) obtain all appropriate clearances within the Department and coordinate with OMB any required Executive Branch review;

(b) provide the Executive Secretary with a copy of testimony at the time such testimony is circulated for clearance within the Department;

(c) obtain clearance from the Executive Secretary prior to transmitting testimony to the Congress pursuant to paragraph 7.a.(4); and

(d) provide LLR a copy of any testimony that includes, transmits, or concerns tax legislation.

(3) Offices and Bureaus. Offices and bureaus shall provide clearances and/or comments to the Office of the Executive Secretary or the Office of Tax Policy, as appropriate, on a timely basis and in the manner prescribed by the Office of the Executive Secretary or the Office of Tax Policy.

7. PREPARATION AND TRANSMITTAL OF DOCUMENTS, ORAL LEGISLATIVE REPORTS AND COMMENTS.

a. General. Except as provided in paragraph 7.b., or unless otherwise directed by LLR or the Assistant Secretary (Legislative Affairs):

(1) Draft Legislation. Letters transmitting draft legislation to the Congress shall be prepared for the signature of the General Counsel and addressed to the Speaker of the House of Representatives and the President of the Senate. Draft legislation shall be transmitted to the Congress as directed by the Assistant Secretary (Legislative Affairs).

(2) Legislative Reports and Comments.

(a) To the Congress. Written legislative reports to the Congress shall be prepared for the signature of the General Counsel, addressed to the chairperson of the appropriate committee or subcommittee, or member of the House of Representatives or the Senate and transmitted by LLR in coordination with the Assistant Secretary (Legislative Affairs).

(b) To OMB. Written legislative reports or legislative comments to OMB shall be prepared for the signature of the Deputy General Counsel, addressed as directed by LLR, and transmitted by LLR. Oral legislative reports and comments to OMB shall be communicated by LLR or as directed by LLR.

(c) Other. Written legislative reports or legislative comments prepared for transmittal to other than the Congress or OMB shall be signed and transmitted by the appropriate policy official.

(3) Proposed E.0.'s. Letters transmitting proposed E.O.'s shall be prepared for the signature of the General Counsel, addressed to the OMB General Counsel, and transmitted by LLR.

(4) Treasury Testimony shall be transmitted to the Congress as directed by the Assistant Secretary (Legislative Affairs).

b. Tax Legislation. Draft tax legislation and legislative reports and comments concerning tax legislation prepared by the Office of Tax Policy may be prepared for the signature of, or communicated by, the Assistant Secretary (Tax Policy) or that official's designee. The Office of Tax Policy shall consult with the Assistant Secretary (Legislative Affairs) prior to transmitting any such written document to the Congress and shall promptly provide LLR with a copy of any such transmittal.

8. SPECIAL REQUIREMENTS.

a. Coordination with E.0. 12612. "Federalism." When preparing draft legislation, legislative reports, legislative comments, or Treasury testimony, offices and bureaus shall take into consideration the principles of E.0. 12612. When transmitting draft legislation, legislative reports, legislative comments, or Treasury testimony for Departmental review and coordination, offices and bureaus shall advise LLR in writing of any significant Federalism implications. Offices and bureaus are advised that preparation of a Federalism Assessment (see TD 28-01, "Preparation and Review of Regulations," Part IV) may be required.

b. Coordination with E.0. 12630. "Governmental Actions and Interference with Constitutionally Protected Property Rights." When preparing draft legislation, legislative reports, legislative comments, or Treasury testimony, offices and bureaus shall take into consideration the principles of E.0. 12630 (see TD 28-01, Part V). When transmitting draft legislation, legislative reports, legislative comments, or Treasury testimony for Departmental review and coordination, offices and bureaus shall advise LLR in writing of any significant takings implications identified.

c. Paperwork Reduction.

(1) Draft Legislation. When preparing draft legislation, offices and bureaus shall ensure that any reporting or recordkeeping requirement contained therein is necessary to carry out the purpose of the draft legislation and imposes the least amount of burden that is consistent with such purpose.

(2) Legislative Reports, Legislative Comments, and Treasury Testimony. When preparing legislative reports, legislative comments, or Treasury testimony, offices and bureaus shall address any reporting or recordkeeping requirement contained in the subject of such report, comment, or testimony that is unnecessary or imposes an inappropriate burden.

d. Competitive Impact Statement.

(1) General. When preparing draft legislation, legislative reports, legislative comments, or written Treasury testimony, offices and bureaus shall consider whether the draft legislation, or the subject of the legislative report, comment, or testimony, may affect the ability of United States firms to compete in domestic and international commerce. In any instance where such an effect is identified, the office or bureau shall prepare a competitiveness impact statement which shall be included in the manner specified for the following:

(a) draft legislation: in the letters transmitting the draft legislation to the Congress;

(b) legislative report: in the legislative report;

(c) legislative comments: in the written or oral comments provided to LLR or the Office of Tax Policy, as appropriate; and

(d) written Treasury testimony: in the written testimony.

(2) Content. A competitiveness impact statement shall address the impact of the draft legislation or the subject of the legislative report or comment, or testimony, on the:

(a) international trade and public interests of United States; and

(b) ability of United States firms to compete in foreign or domestic markets.

9. AUTHORITIES.

a. OMB Circular A-l9 (Revised), "Legislative Coordination and Clearance."

b. Treasury Order (TO) 113-01, "Redesignation of the Assistant Secretary for Policy Development as the Assistant Secretary for Policy Management," dated March 30, 1989.

c. TO 113-02, "Legislative Procedures."

d. E.0. 12612, "Federalism," dated October 26, 1987 (52 FR 41685).

e. E.0. 12630, "Governmental Actions and Interference with Constitutionally Protected Property Rights," dated March 15, 1988 (53 FR 8859).

f. 5 CFR Part 1320, "Controlling Paperwork Burdens on the Public," revised May 10, 1988 (53 FR 16618) (see also 5 CFR Part 1320.10 and OMB annual bulletins concerning Information Collection Budgets).

g. Section 5421 of the "Omnibus Trade and Competitiveness Act of 1988" (P.L. 100-418).

10. REFERENCES.

a. TD 28-01, "Preparation and Review of Regulations," dated July 17, 1989.

b. TD 27-09, "Organization and Functions of the Office of the Assistant Secretary (Legislative Affairs)," dated March 23, 1990.

11. OFFICES OF PRIMARY INTEREST.

a. The Office of the Associate General Counsel (Legislation, Litigation, and Regulation), Office of the General Counsel.

b. The Office of the Assistant Secretary (Legislative Affairs).

c. The Office of the Assistant Secretary (Tax Policy).

d. The Office of the Executive Secretary, Office of the Assistant Secretary (Policy Management).

Hollis S. McLaughlin

Assistant Secretary (Policy Management)

Attachment

Attachment

1. Draft Legislation. Any of the following (including supporting documents) prepared by or for an office or bureau and intended for transmittal to OMB, any department or agency of the Federal Government or the Congress, or is otherwise to be made available outside the Department:

a. draft bill or resolution, or amendment thereto;

b. draft amendment to a pending bill; or

c. recommendation or proposal for specific legislative action.

2. Legislative Report. Any of the following (including supporting documents) prepared by or for an office or bureau:

a. written expression of views with respect to a pending bill intended for transmittal to the Congress;

b. written or oral expression of views with respect to a pending bill intended for transmittal to OMB; or

c. expression of views on a pending bill, or endorsement of Federal legislation, included in an annual or special report or other written form, that is intended for transmittal to the Congress or OMB, or is otherwise to be made available outside the Department.

3. Pending Bill. Any bill, resolution, proposal, or amendment:

a. introduced in the Congress;

b. pending before or under consideration by the Congress, whether or not it has been introduced; or

c. that has passed both Houses of Congress, whether or not it has been presented to the president as an enrolled bill for signature.

4. Legislative Comment. Any written or oral expression of views prepared by a Treasury office or bureau that is intended for transmittal to OMB or any department or agency of the Federal Government, or is otherwise to be made available outside the Department, concerning any draft legislation, legislative report, legislative comment, testimony, or proposed E.0. not prepared by a Treasury office or bureau.

5. Treasury Testimony. Any written expression of views, or written outline of oral views, including supporting materials, prepared by a Treasury office or bureau for submission to, or for oral presentation before, the Congress in connection with any hearing, including follow-up answers to questions posed at a hearing or in correspondence from the Congress.

6. Proposed Executive Order (E.0.). Any document (including supporting materials) intended for issuance by the President as an E.0. and, for purposes of this directive, any document to be issued as a presidential proclamation.

7. Tax Legislation. Legislation, as determined by LLR, that relates entirely or principally to changes in the Internal Revenue Code (IRC) or other tax law not codified in the IRC (other than matters concerning the Bureau of Alcohol, Tobacco and Firearms); administration of a tax, fee, or charge collected by the Internal Revenue Service (IRS); the organization of the IRS; or social security, railroad retirement, unemployment compensation, the Employee Retirement Income Security Act of 1974, or private health insurance programs.

8. Legislative Program. The annual list of specific legislative proposals prepared by the Department of the Treasury pursuant to OMB Circular A-l9.

9. Office of Tax Policy. The Office of the Assistant Secretary (Tax Policy) and, for purposes of this directive, the Offices of Tax Analysis, the Tax Legislative Counsel, the International Tax Counsel, and the Benefits Tax Counsel.

10. Congress. Includes the Senate and the House of Representatives, and any member, committee, subcommittee, conference committee, organization, study group, caucus, or staff thereof.

11. Office. Any organizational component within the Departmental Offices.