[Federal Register Volume 76, Number 1 (Monday, January 3, 2011)]
[Notices]
[Pages 81-83]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-32985]
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Notices
Federal Register
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This section of the FEDERAL REGISTER contains documents other than rules
or proposed rules that are applicable to the public. Notices of hearings
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Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 /
Notices
[[Page 81]]
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendation
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Administrative Conference of the United States adopted the
attached recommendation at its Fifty-third Plenary Session. The
recommendation addresses issues relating to Federal agency procedures
regarding consultation with State and local governments and for
considering State interests in rulemakings that may result in the
preemption of State law.
FOR FURTHER INFORMATION CONTACT: Emily F. Schleicher, Designated
Federal Officer, Administrative Conference of the United States, Suite
706 South, 1120 20th Street, NW., Washington, DC 20036; Telephone 202-
480-2080.
SUPPLEMENTARY INFORMATION: The Administrative Conference of the United
States was established by the Administrative Conference Act, 5 U.S.C.
591-596. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by Federal agencies in carrying
out administrative programs, and makes recommendations for improvements
to the agencies, collectively or individually, and to the President,
Congress, and the Judicial Conference of the United States (5 U.S.C.
594(1)). At its Fifty-third Plenary Session, held December 9 and 10,
2010, the Assembly of the Administrative Conference of the United
States adopted the attached recommendation. For further information
about the Conference and its activities, see http://www.acus.gov.
Recommendation 2010-1, ``Agency Procedures for Considering
Preemption of State Law,'' addresses issues relating to agency
procedures for complying with Federal requirements regarding
consultation with State and local governments and for considering State
interests in rulemakings that may result in the preemption of State
law. The goal of the recommendation is not to favor or disfavor
preemption, but to improve agency procedures in potentially preemptive
rulemakings. The recommendation reiterates a previous Conference
recommendation that Congress clearly state its preemptive intent in the
text of the statutes it charges Federal agencies with implementing. It
recommends that agencies formulate appropriate internal procedures to
ensure consultation with representatives of State interests and to
ensure that agencies evaluate the authority and basis asserted in
support of a preemptive rulemaking. It seeks to increase transparency
regarding internal agency policies and recommends ways to improve
external mechanisms for enforcing the applicable Federal requirements.
The full text of the recommendation is set out in the Appendix
below. The recommendation will be transmitted to affected agencies and
to appropriate committees of the United States Congress. The
Administrative Conference has advisory powers only, and the decision on
whether to implement the recommendation must be made by the affected
agencies or by Congress.
The Administrative Conference ceased operations in 1995 due to
termination of funding, but was re-established in 2010, and the Council
of the revived Administrative Conference held its first meeting in
August 2010. The December 2010 Plenary Session was the first held after
the resumption of operations. Recommendations and statements of the
Administrative Conference are published in full text in the Federal
Register. The research report on which Recommendation 2010-1 is based
and a complete listing of past recommendations and statements are
available at http://www.acus.gov.
The transcript of the Plenary Session is available for public
inspection at the Conference's offices at 1120 20th Street, NW., Suite
706 South, Washington, DC.
Authority: 5 U.S.C. 591-96.
Dated: December 27, 2010.
Jonathan R. Siegel,
Director of Research and Policy.
Appendix--Recommendations of the Administrative Conference of the
United States
Recommendation 2010-1, Agency Procedures for Considering Preemption of
State Law (Adopted December 9, 2010)
Preamble
Presidents Reagan and Clinton both issued executive orders
mandating executive branch agencies,\1\ and urging independent
agencies,\2\ to take certain measures to ensure proper respect for
principles of federalism. Executive Order 13132, ``Federalism,''
issued by President Clinton on August 4, 1999 (the ``Order''),\3\ is
still in effect today, and is an amended version of President
Reagan's Executive Order on Federalism, Executive Order 12612.\4\
The Order identifies federalism principles that bear consideration
in policymaking and specifies procedures for intergovernmental
consultation, emphasizing consultations with State and local
governments and enhanced sensitivity to their concerns. The Order
requires agencies to 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.'' \5\ The Order requires agencies to ``provide all
affected State and local officials notice and an opportunity for
appropriate participation in the proceedings'' whenever an agency
proposes to preempt State law through adjudication or rulemaking.\6\
It establishes specific procedures for ``any regulation that has
federalism implications and that preempts State law,'' \7\ requiring
agencies to consult with State and local officials ``early in the
process of developing the proposed regulation,'' \8\ and to prepare
a federalism impact statement (``FIS'').\9\
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\1\ Exec. Order No. 13,132, Sec. 1(c).
\2\ Id. at Sec. 9.
\3\ Exec. Order No. 13,132, 3 CFR 206 (2000), reprinted in 3
U.S.C. 301 (2006).
\4\ President Reagan's Executive Order on Federalism adopted,
nearly verbatim, ACUS recommendations. Compare Exec. Order No.
12,612, 3 CFR 252, Sec. Sec. 4(d) & (e) (1988), reprinted in 5
U.S.C. 601 (1994), with Administrative Conference of the United
States, Recommendation No. 84-5, Preemption of State Regulation by
Federal Agencies ]] 4, 5 (1984).
\5\ Exec. Order No. 13,132, Sec. 6(a). The consultation process
must involve ``elected officials of State and local governments or
their representative national organizations.'' Id. at Sec. Sec.
1(d), 6(a).
\6\ Id. at Sec. 4(e).
\7\ Id. at Sec. 6(c).
\8\ Id. at Sec. 6(c)(1).
\9\ Id. at Sec. 6(c)(2) (requiring a FIS for any regulation
``that has federalism implications and that preempts State law'');
id. at Sec. 1(a) (defining ``federalism implications'').
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[[Page 82]]
Individual agencies are responsible for implementing Executive
Order 13132, and the Office of Information and Regulatory Affairs
(``OIRA''), located within the Office of Management and Budget
(``OMB''), has issued procedural guidelines on ``what agencies
should do to comply with the Order and how they should document that
compliance to OMB.'' \10\ These Federalism Guidelines provide that
each agency and department should designate a federalism official
charged with: (1) Ensuring that the agency considers federalism
principles in its development of regulatory and legislative policies
with federalism implications; (2) ensuring that the agency has an
accountable process for meaningful and timely intergovernmental
consultation in the development of regulatory policies that have
federalism implications; and (3) providing certification of
compliance to OMB. The federalism official must submit to OMB ``a
description of the agency's consultation process,'' \11\ that
``indicate[s] how the agency identifies those policies with
federalism implications and the procedures the agency will use to
ensure meaningful and timely consultation with affected State and
local officials.'' \12\ For any draft final regulation with
federalism implications submitted for OIRA review under Executive
Order 12866, the federalism official must certify that the
requirements of Executive Order 13132 concerning both the evaluation
of federalism policies and consultation have been met in a
meaningful and timely manner.\13\
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\10\ Memorandum from Jacob J. Lew, Director, Office of Mgmt. &
Budget, to the Heads of Executive Departments and Agencies, and
Independent Regulatory Agencies, Guidance for Implementing E.O.
13132, ``Federalism'' (Oct. 28, 1999), at 2, available at http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/m00-/02.pdf (last visited October 29, 2010) (``Federalism Guidelines'').
\11\ Exec. Order No. 13,132, Sec. 6(a); Federalism Guidelines
2.
\12\ Federalism Guidelines 4-5.
\13\ Exec. Order No. 13,132, Sec. 8(a).
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President Obama's official policy on preemption, articulated in
a May 20, 2009 presidential ``Memorandum for Heads of Executive
Departments and Agencies'' (``Preemption Memorandum''), provides
that ``[p]reemption of State law by executive departments and
agencies should be undertaken only with full consideration of the
legitimate prerogatives of the States and with a sufficient legal
basis for preemption.'' \14\ It specifically admonishes department
and agency heads to cease the practice of including preemption
statements in the preamble to a regulation without including it in
the codified regulation. And it further directs agencies to include
preemption provisions in codified regulations only to the extent
``justified under legal principles governing preemption, including
the principles outlined in Executive Order 13132.'' Finally, the
Preemption Memorandum requests that agencies conduct a 10-year
retrospective review of regulations including preemption statements,
whether in the preamble or the codified regulation, ``in order to
decide whether such statements or provisions are justified under
applicable legal principles governing preemption.''
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\14\ Memorandum for the Heads of Executive Departments and
agencies (May 20, 2009), 74 FR 24,693, 24,693-94 (May 22, 2009),
available at http://www.gpo.gov/fdsys/pkg/FR-2009-05-22/pdf/E9-12250.pdf#page=1 (last visited October 29, 2010).
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An empirical evaluation of agency practices reveals that
compliance with the preemption provisions of Executive Order 13132
has been inconsistent, although President Obama's Preemption
Memorandum has effectuated a meaningful shift in preemption policies
within a number of agencies. This evaluation was based on
statistical analysis of agency rulemaking practices, on particular
examples of agency rulemakings, on recent interviews with officials
at the National Highway Traffic Safety Administration (``NHTSA''),
Food and Drug Administration (``FDA''), Office of the Comptroller of
the Currency (``OCC''), Consumer Product Safety Commission
(``CPSC''), Federal Trade Commission (``FTC''), and Environmental
Protection Agency (``EPA''), and on consideration of legislative
changes to statutes relevant to agency preemption and an independent
review of the agencies' respective rulemaking dockets and
intervention in litigation.
There appears to be consensus that the requirements of the
preemption provisions of Executive Order 13132--including
consultation with the States and the requirement for ``federalism
impact statements''--are sound. But compliance with these provisions
has been inconsistent, and difficulties have persisted across
administrations of both political parties. A 1999 GAO Report
identified only five rules--out of a total of 11,000 issued from
April 1996 to December 1998 \15\--that included a federalism impact
assessment.\16\ Case studies of particular rulemaking proceedings
have revealed failures to comply with Executive Order 13132.\17\ In
August 2010, reflecting continued concern with agency practices in
this area, the ABA House of Delegates adopted a recommendation
developed by the ABA Task Force on Federal Preemption of State Tort
Laws, aimed at improving compliance with the preemption provisions
of Executive Order 13132.\18\
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\15\ Executive Order 12612 was in effect during this time
period.
\16\ U.S. General Accounting Office, GAO/T-GGD-99-93,
Implementation of Executive Order 12612 in the Rulemaking Process 1
(1999). The exact number of federalism impact assessments during
this period is in some doubt but appears to be quite small. See Nina
A. Mendelson, Chevron and Preemption, 102 Mich. L. Rev. 737, 784
n.192 (2004) (reporting identification of 9 federalism impact
assessments from the fourth quarter of 1998); see also id at 783-84
(demonstrating that federalism impact statements are relatively rare
and of ``poor quality''). Of course, many rules do not require a
federalism impact assessment. The number of rules that should have
included one is unknown, but the very small number that did suggests
that agencies were ``not implementing the order as vigorously as
they could.'' GAO report, supra, at 13.
\17\ See Catherine M. Sharkey, Federalism Accountability:
``Agency Forcing'' Measures, 58 Duke L.J. 2125, 2131-439 (2009)
(analyzing several rulemaking proceedings in which an agency's
notice of proposed rulemaking stated that a rule would have no
federalism impact, but in which the agency stated that the final
rule had preemptive effect, in some cases without preparing a
federalism impact statement or consulting with state officials); see
also Nina A. Mendelson, A Presumption Against Agency Preemption, 102
Nw. L. Rev. 695, 719 (2008) (reporting results from a further, 2006
study of preemptive rules, which disclosed that, out of six
preemptive rulemakings studied, only three contained federalism
impact analysis, and only one of the analyses ``went beyond stating
either that the agency concluded that it possessed statutory
authority to preempt or that the document had been made available
for comment, including to state officials'').
\18\ American Bar Association House of Delegates, Resolution
117, available at http://www.abanow.org/2010/07/am-2010-117/ (last
visited Nov. 2, 2010).
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This Administrative Conference Recommendation is intended to
improve agency procedures for implementing the preemption provisions
of Executive Order 13132 and to increase transparency regarding
internal agency policies and external enforcement mechanisms
designed to ensure compliance with those provisions. The goal is not
to favor or disfavor preemption, but to improve agency procedures in
potentially preemptive rulemakings. The Recommendation is also
intended to facilitate Federal agency consultation with State
representatives, such as the ``Big Seven,'' a group of nonpartisan,
non-profit organizations composed of State and local government
officials,\19\ and, conversely, to facilitate State officials'
awareness of and responsiveness to, opportunities to consult with
Federal officials and to comment in regulatory proceedings that may
have preemptive effect. Improved communication on preemption issues
would result if State and local government officials or their
representative organizations availed themselves of opportunities to
become aware of whether Federal agencies are engaging in potentially
preemptive rulemaking proceedings, for example, by monitoring the
Federal Register or using relevant Internet dashboards, such as are
available at http://www.reginfo.gov. Agencies can ensure that these
tools are optimally useful to State representatives by clearly
posting relevant information on their individual Web sites and
providing appropriate information for inclusion in the semiannual
Unified Agenda. Finally, this Recommendation is aimed at both
executive branch and independent agencies that engage in preemptive
rulemaking, with the recognition that the executive directives
described above bind the former and urge voluntarily compliance by
the latter.
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\19\ The Big Seven include the Council of State Governments, the
National Governors Association, the National Conference of State
Legislatures, the National League of Cities, the U.S. Conference of
Mayors, the National Association of Counties, and the International
City/County Management Association.
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The Conference recognizes the danger of encumbering the
rulemaking process with too many formal requirements. Therefore, in
crafting this Recommendation, the Conference has remained mindful of
the continuing validity of its previous
[[Page 83]]
Recommendation aimed at reducing ``ossification'' of the regulatory
process.\20\ The Conference recognizes, however, that certain
principles, including those embodied in the preemption provisions of
Executive Order 13132, are sufficiently important to warrant
systematic consideration by agencies engaging in rulemaking. The
following Recommendation has accordingly been structured both to
encourage compliance with existing executive directives and increase
the efficiency of internal agency processes designed to ensure such
compliance.
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\20\ Administrative Conference of the United States,
Recommendation No. 93-4, Improving the Environment for Agency
Rulemaking (1993).
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Recommendation
1. The Conference reiterates its previous, related
recommendation that ``Congress should address foreseeable preemption
issues clearly and explicitly when it enacts a statute affecting
regulation or deregulation of an area of conduct.'' \21\
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\21\ Administrative Conference of the United States,
Recommendation No. 84-5, Preemption of State Regulation by Federal
Agencies (1984).
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Internal Procedures for Compliance With the Preemption Provisions
of Executive Order 13132
2. Agencies that engage in rulemaking proceedings that may have
preemptive effect on State law should have internal written guidance
to ensure compliance with the preemption provisions of Executive
Order 13132, which should describe:
a. How the agency determines the need for any preemption;
b. How the agency consults with State and local officials
concerning preemption; and
c. How the agency otherwise ensures compliance with the
preemption provisions of Executive Order 13132.
3. Agencies should post their internal guidance for compliance
with the preemption provisions of Executive Order 13132 on the
Internet or otherwise make publicly available the information
contained therein.
4. Agencies should have an oversight procedure to improve agency
procedures for implementing the preemption provisions of Executive
Order 13132. This procedure should include an internal process for
evaluating the authority and basis asserted in support of a
preemptive rulemaking. The agency should provide a reasoned basis,
with such evidence as may be appropriate, that supports its
preemption conclusion.
Updated Policies To Ensure Timely Consultation With State and Local
Interests Concerning Preemption
5. Agencies should have a consultation process that contains
elements such as the following:
a. Agencies should use an updated contact list for
representatives of State interests, including but not limited to the
``Big Seven.'' The Administrative Conference will maintain such a
list for use by agencies.
b. Agencies should maintain some form of regularized personal
contact in order to build relationships with representatives of
State interests.
c. Agencies should disclose to the public when they meet with
the representatives of State interests in the course of rulemaking
proceedings that may preempt State law. The disclosure should
include the identity of the organization(s) or institution(s) that
participate and the subject matter of the discussion.
d. Agencies should reach out to appropriate State and local
officials early in the process when they are considering preemptive
rules. Such outreach should, to the extent practicable, precede
issuance of the notice of proposed rulemaking.
6. Agencies should establish contact with organizations and
State and local regulatory bodies and officials that have relevant
substantive expertise or jurisdiction.
7. Agencies should adopt, as one component of their notice
practice, a procedure for notifying State attorneys general when
they are considering rules that may have preemptive effect. This may
be achieved via direct communication with State attorneys general
and by contacting an appropriate representative organization such
as, for example, the National Association of Attorneys General.
Actions by OIRA/OMB To Improve the Process
8. OIRA/OMB should request agencies to post on their open
government Web sites a summary of the agencies' responses to the
directive contained in the Preemption Memorandum to conduct a 10-
year retrospective review of preemptive rulemaking.
9. OIRA/OMB should update its Federalism Guidelines with respect
to preemption.
10. OIRA should include reference to Executive Order 13132 in
Circular A-4.\22\
\22\ Office of Info. & Regulatory Affairs, Circular A-4 on
Regulatory Analysis (2003), available at http://www.whitehouse.gov/sites/default/files/omb/assets/regulatory_matters_pdf/a-4.pdf
(last visited October 15, 2010).
[FR Doc. 2010-32985 Filed 12-30-10; 8:45 am]
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