Executive Order 13132 of August 4, 1999
[Federal Register Volume 64, Number 153 (Tuesday, August 10, 1999)]
Federalism
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, and in order to guarantee the division of
governmental responsibilities between the national
government and the States that was intended by the
Framers of the Constitution, to ensure that the
principles of federalism established by the Framers
guide the executive departments and agencies in the
formulation and implementation of policies, and to
further the policies of the Unfunded Mandates Reform
Act, it is hereby ordered as follows:
Section 1. Definitions. For purposes of this order:
(a) “Policies that have federalism implications”
refers to regulations, legislative comments or proposed
legislation, and other policy statements or actions
that have substantial direct effects on the States, on
the relationship between the national government and
the States, or on the distribution of power and
responsibilities among the various levels of
government.
(b) “State” or “States” refer to the States of
the United States of America, individually or
collectively, and, where relevant, to State
governments, including units of local government and
other political subdivisions established by the States.
(c) “Agency” means any authority of the United
States that is an “agency” under 44 U.S.C. 3502(1),
other than those considered to be independent
regulatory agencies, as defined in 44 U.S.C. 3502(5).
(d) “State and local officials” means elected
officials of State and local governments or their
representative national organizations.
Sec. 2. Fundamental Federalism Principles. In
formulating and implementing policies that have
federalism implications, agencies shall be guided by
the following fundamental federalism principles:
(a) Federalism is rooted in the belief that issues
that are not national in scope or significance are most
appropriately addressed by the level of government
closest to the people.
(b) The people of the States created the national
government and delegated to it enumerated governmental
powers. All other sovereign powers, save those
expressly prohibited the States by the Constitution,
are reserved to the States or to the people.
(c) The constitutional relationship among sovereign
governments, State and national, is inherent in the
very structure of the Constitution and is formalized in
and protected by the Tenth Amendment to the Constitution.
(d) The people of the States are free, subject only
to restrictions in the Constitution itself or in
constitutionally authorized Acts of Congress, to define
the moral, political, and legal character of their lives.
(e) The Framers recognized that the States possess
unique authorities, qualities, and abilities to meet
the needs of the people and should function as laboratories of democracy.
(f) The nature of our constitutional system
encourages a healthy diversity in the public policies
adopted by the people of the several States according
to their own conditions, needs, and desires. In the
search for enlightened public policy, individual States
and communities are free to experiment with a variety
of approaches to public issues. One-size-fits-all
approaches to public policy problems can inhibit the
creation of effective solutions to those problems.
(g) Acts of the national government–whether
legislative, executive, or judicial in nature–that
exceed the enumerated powers of that government under
the Constitution violate the principle of federalism established by the Framers.
(h) Policies of the national government should
recognize the responsibility of–and should encourage
opportunities for–individuals, families,
neighborhoods, local governments, and private
associations to achieve their personal, social, and
economic objectives through cooperative effort.
(i) The national government should be deferential
to the States when taking action that affects the
policymaking discretion of the States and should act
only with the greatest caution where State or local
governments have identified uncertainties regarding the
constitutional or statutory authority of the national government.
Sec. 3. Federalism Policymaking Criteria. In addition
to adhering to the fundamental federalism principles
set forth in section 2, agencies shall adhere, to the
extent permitted by law, to the following criteria when
formulating and implementing policies that have
federalism implications:
(a) There shall be strict adherence to
constitutional principles. Agencies shall closely
examine the constitutional and statutory authority
supporting any action that would limit the policymaking
discretion of the States and shall carefully assess the
necessity for such action. To the extent practicable,
State and local officials shall be consulted before any
such action is implemented. Executive Order 12372 of
July 14, 1982 (“Intergovernmental Review of Federal
Programs”) remains in effect for the programs and
activities to which it is applicable.
(b) National action limiting the policymaking
discretion of the States shall be taken only where
there is constitutional and statutory authority for the
action and the national activity is appropriate in
light of the presence of a problem of national
significance. Where there are significant uncertainties
as to whether national action is authorized or
appropriate, agencies shall consult with appropriate
State and local officials to determine whether Federal
objectives can be attained by other means.
(c) With respect to Federal statutes and
regulations administered by the States, the national
government shall grant the States the maximum
administrative discretion possible. Intrusive Federal
oversight of State administration is neither necessary
nor desirable.
(d) When undertaking to formulate and implement
policies that have federalism implications, agencies
shall:
L (1) encourage States to develop their own
policies to achieve program objectives and to work with
appropriate officials in other States;
L (2) where possible, defer to the States to
establish standards;
L (3) in determining whether to establish uniform
national standards, consult with appropriate State and
local officials as to the need for national standards
and any alternatives that would limit the scope of
national standards or otherwise preserve State
prerogatives and authority; and
L (4) where national standards are required by
Federal statutes, consult with appropriate State and
local officials in developing those standards.
Sec. 4. Special Requirements for Preemption. Agencies,
in taking action that preempts State law, shall act in
strict accordance with governing law.
(a) Agencies shall construe, in regulations and
otherwise, a Federal statute to preempt State law only
where the statute contains an express preemption
provision or there is some other clear evidence that
the Congress intended preemption of State law, or where
the exercise of State authority conflicts with the
exercise of Federal authority under the Federal
statute.
(b) Where a Federal statute does not preempt State
law (as addressed in subsection (a) of this section),
agencies shall construe any authorization in the
statute for the issuance of regulations as authorizing
preemption of State law by rulemaking only when the
exercise of State authority directly conflicts with the
exercise of Federal authority under the Federal statute
or there is clear evidence to conclude that the
Congress intended the agency to have the authority to
preempt State law.
(c) Any regulatory preemption of State law shall be
restricted to the minimum level necessary to achieve
the objectives of the statute pursuant to which the
regulations are promulgated.
(d) When an agency foresees the possibility of a
conflict between State law and Federally protected
interests within its area of regulatory responsibility,
the agency shall consult, to the extent practicable,
with appropriate State and local officials in an effort
to avoid such a conflict.
(e) When an agency proposes to act through
adjudication or rulemaking to preempt State law, the
agency shall provide all affected State and local
officials notice and an opportunity for appropriate
participation in the proceedings.
Sec. 5. Special Requirements for Legislative Proposals.
Agencies shall not submit to the Congress legislation
that would:
(a) directly regulate the States in ways that would
either interfere with functions essential to the
States’ separate and independent existence or be
inconsistent with the fundamental federalism principles
in section 2;
(b) attach to Federal grants conditions that are
not reasonably related to the purpose of the grant; or
(c) preempt State law, unless preemption is
consistent with the fundamental federalism principles
set forth in section 2, and unless a clearly legitimate
national purpose, consistent with the federalism
policymaking criteria set forth in section 3, cannot
otherwise be met.
Sec. 6. Consultation.
(a) Each agency shall have an accountable process
to ensure meaningful and timely input by State and
local officials in the development of regulatory
policies that have federalism implications. Within 90
days after the effective date of this order, the head
of each agency shall designate an official with
principal responsibility for the agency’s
implementation of this order and that designated
official shall submit to the Office of Management and
Budget a description of the agency’s consultation
process.
(b) To the extent practicable and permitted by law,
no agency shall promulgate any regulation that has
federalism implications, that imposes substantial
direct compliance costs on State and local governments,
and that is not required by statute, unless:
L (1) funds necessary to pay the direct costs
incurred by the State and local governments in
complying with the regulation are provided by the
Federal Government; or
L (2) the agency, prior to the formal promulgation
of the regulation,
L (A) consulted with State and local officials early
in the process of developing the proposed
regulation;
L (B) in a separately identified portion of the
preamble to the regulation as it is to be issued in
the Federal Register, provides to the Director of
the Office of Management and Budget a federalism
summary impact statement, which consists of a
description of the extent of the agency’s prior
consultation with State and local officials, a
summary of the nature of their concerns and the
agency’s position supporting the need to issue the
regulation, and a statement of the extent to which
the concerns of State and local officials have been
met; and
L (C) makes available to the Director of the Office
of Management and Budget any written communications
submitted to the agency by State and local
officials.
(c) To the extent practicable and permitted by law,
no agency shall promulgate any regulation that has
federalism implications and that preempts State law,
unless the agency, prior to the formal promulgation of
the regulation,
L (1) consulted with State and local officials
early in the process of developing the proposed
regulation;
L (2) in a separately identified portion of the
preamble to the regulation as it is to be issued in the
Federal Register, provides to the Director of the
Office of Management and Budget a federalism summary
impact statement, which consists of a description of
the extent of the agency’s prior consultation with
State and local officials, a summary of the nature of
their concerns and the agency’s position supporting the
need to issue the regulation, and a statement of the
extent to which the concerns of State and local
officials have been met; and
L (3) makes available to the Director of the
Office of Management and Budget any written
communications submitted to the agency by State and
local officials.
Sec. 7. Increasing Flexibility for State and Local Waivers.
(a) Agencies shall review the processes under which
State and local governments apply for waivers of
statutory and regulatory requirements and take
appropriate steps to streamline those processes.
(b) Each agency shall, to the extent practicable
and permitted by law, consider any application by a
State for a waiver of statutory or regulatory
requirements in connection with any program
administered by that agency with a general view toward
increasing opportunities for utilizing flexible policy
approaches at the State or local level in cases in
which the proposed waiver is consistent with applicable
Federal policy objectives and is otherwise appropriate.
(c) Each agency shall, to the extent practicable
and permitted by law, render a decision upon a complete
application for a waiver within 120 days of receipt of
such application by the agency. If the application for
a waiver is not granted, the agency shall provide the
applicant with timely written notice of the decision
and the reasons therefor.
(d) This section applies only to statutory or
regulatory requirements that are discretionary and
subject to waiver by the agency.
Sec. 8. Accountability.
(a) In transmitting any draft final regulation that
has federalism implications to the Office of Management
and Budget pursuant to Executive Order 12866 of
September 30, 1993, each agency shall include a
certification from the official designated to ensure
compliance with this order stating that the
requirements of this order have been met in a
meaningful and timely manner.
(b) In transmitting proposed legislation that has
federalism implications to the Office of Management and
Budget, each agency shall include a certification from
the official designated to ensure compliance with this
order that all relevant requirements of this order have
been met.
(c) Within 180 days after the effective date of
this order, the Director of the Office of Management
and Budget and the Assistant to the President for
Intergovernmental Affairs shall confer with State and
local officials to ensure that this order is being
properly and effectively implemented.
Sec. 9. Independent Agencies. Independent regulatory
agencies are encouraged to comply with the provisions
of this order.
Sec. 10. General Provisions.
(a) This order shall supplement but not supersede
the requirements contained in Executive Order 12372
(“Intergovernmental Review of Federal Programs”),
Executive Order 12866 (“Regulatory Planning and
Review”), Executive Order 12988 (“Civil Justice
Reform”), and OMB Circular A-19.
(b) Executive Order 12612 (“Federalism”),
Executive Order 12875 (“Enhancing the
Intergovernmental Partnership”), Executive Order 13083
(“Federalism”), and Executive Order 13095
(“Suspension of Executive Order 13083”) are revoked.
(c) This order shall be effective 90 days after the
date of this order.
Sec. 11. Judicial Review. This order is intended only
to improve the internal management of the executive
branch, and is not intended to create any right or
benefit, substantive or procedural, enforceable at law
by a party against the United States, its agencies, its
officers, or any person.
(Presidential Sig.)
THE WHITE HOUSE,
August 4, 1999.
[FR Doc. 99-20729
Filed 8-9-99; 8:45 am]
Billing code 3195-01-P
Presidential Documents – Federal Register / Vol. 64, No. 153 / Tuesday, August 10, 1999 / Presidential Documents