Weekly Compilation of Presidential Documents Volume 35 Issue 31 (Monday, August 9, 1999)

[Weekly Compilation of Presidential Documents Volume 35, Number 31 (Monday, August 9, 1999)]
[Pages 1557-1561]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 13132--Federalism

August 4, 1999

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

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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 nation 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:
(1) encourage States to develop their own policies to achieve
program objectives and to work with appropriate officials in other
States;
(2) where possible, defer to the States to establish standards;
(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
(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

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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:
(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
(2) the agency, prior to the formal promulgation of the
regulation,
(A) consulted with State and local officials early in the
process of developing the proposed regulation;
(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
(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.

[[Page 1560]]

(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.
(1) consulted with State and local officials early in the process
of developing the proposal regulation;
(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
(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

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a party against the United States, its agencies, its officers, or any
person.
William J. Clinton
The White House,
August 4, 1999.

[Filed with the Office of the Federal Register, 8:45 a.m., August 9,
1999]

Note: This Executive order was released by the Office of the Press
Secretary on August 5, and it was published in the Federal Register on
August 10.