[Presidential Documents

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From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr10au99-133]

                        Presidential Documents

_________________________________________________

Title 3--

The Presiden

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                Executive Order 13132 of August 4, 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.

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                    (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.

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                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;

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                  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.

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                    (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

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