Presidential
Documents
43255
Federal
Register
Vol.
64,
No.
153
Tuesday,
August
10,
1999
Title
3
 
The
President
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
execu­
tive
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,
legis­
lative
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,
in­
cluding
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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153
/
Tuesday,
August
10,
1999
/
Presidential
Documents]

(
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,
neighbor­
hoods,
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
author­
ity
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
formu­
lating
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
imple­
mented.
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
Fed­
eral
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
adminis­
trative
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,
con­
sult
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.

[
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No.
153
/
Tuesday,
August
10,
1999
/
Presidential
Documents]

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
responsi­
bility,
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
pro­
ceedings.
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
funda­
mental
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
promul­
gate
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;

[
43258
Federal
Register
/
Vol.
64,
No.
153
/
Tuesday,
August
10,
1999
/
Presidential
Documents]

(
B)
in
a
separately
identified
portion
of
the
preamble
to
the
regula­
tion
as
it
is
to
be
issued
in
the
Federal
Register,
provides
to
the
Direc­
tor
of
the
Office
of
Management
and
Budget
a
federalism
summary
im­
pact
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.

(
c)
To
the
extent
practicable
and
permitted
by
law,
no
agency
shall
promul­
gate
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
devel­
oping
the
proposed
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
govern­
ments
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
other­
wise
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
implica­
tions
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
certifi­
cation
from
the
official
designated
to
ensure
compliance
with
this
order
that
all
relevant
requirements
of
this
order
have
been
met.

[
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Federal
Register
/
Vol.
64,
No.
153
/
Tuesday,
August
10,
1999
/
Presidential
Documents]

(
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
con­
tained
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
(``
En­
hancing
the
Intergovernmental
Partnership''),
Executive
Order
13083
(``
Fed­
eralism''),
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.

THE
WHITE
HOUSE,
August
4,
1999.
[
FR
Doc.
99
 
20729
Filed
8
 
9
 
99;
8:
45
am]
Billing
code
3195
 
01
 
P
