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Federalism Conf. Quebec 10/8/99 - Federalism - Executive Order POTUS and Federalism
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Federalism Conf. Quebec 10/8/99 - Federalism - Executive Order POTUS & Federalism
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91
6
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1
FEDERALISM- - EXECUTIVE ORDER
POTUS & FEDERALISM
IGA - MATT BENNET
COPY
Clinton Fedrellin
sk also DGA - retrip
NGA meetrys
]
Page 1 of 6
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
August 5, 1999
EXECUTIVE ORDER 13132
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
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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
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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 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
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(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 súmmary 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.
(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 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
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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
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Page 6 of 6
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.
WILLIAM J. CLINTON
THE WHITE HOUSE,
August 4, 1999,
# # #
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Page 1 of 1
THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
August 5, 1999
STATEMENT BY THE PRESIDENT
As a former Governor, I know how important it is for the American
people that the Federal government and State and local governments work
together as partners. The executive order on federalism I signed will
strengthen our partnership with State and local governments and ensure
that executive branch agencies are able to do their work on behalf of
the American people. I want to thank the representatives of State and
local governments who worked with my administration in developing an
executive order that enables us to better serve all of the American
people.
30-30-30
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10/1/1999
Matthew L. Bennett
10/05/99 01:33:52 PM
Record Type:
Record
To:
Jeffrey A. Shesol/WHO/EOP@EOP
CC:
Subject: Executive Order No. 13132, "Federalism" and Upcoming Meetings
The OMB guidance is at the bottom.
Forwarded by Matthew L. Bennett/WHO/EOP on 10/05/99 01:29 PM
Jefferson B. Hill
09/10/99 04:11:58
PM
Record Type:
Record
To:
Matthew L. Bennett/WHO/EOP@EOP
CC:
Subject: Executive Order No. 13132, "Federalism" and Upcoming Meetings
Here are the folks that received our request for comments. The first list tend to be GCs, and Deputy
Secretaries, or equivalent. The second list tend to be the attorneys in the agencies with primary
responsibility for agency regulations.
Forwarded by Jefferson B. Hill/OMB/EOP on 09/10/99 04:10 PM
Lisa M. Jones
09/10/99 10:04:22 AM
Record Type:
Record
To:
See the distribution list at the bottom of this message
CC:
See the distribution list at the bottom of this message
Subject: Executive Order No. 13132, "Federalism" and Upcoming Meetings
***
Please note this same email sent to you yesterday was from Don Arbuckle.
MEMORANDUM FOR THE REGULATORY WORKING GROUP
FROM:
Don Arbuckle
SUBJECT:
Federalism Executive Order and Upcoming Meetings
Welcome back. A couple of things to start off the policy-making season:
First, attached for your review and comment is a draft of OMB guidance to the agencies on Executive
Order 13132, "Federalism." We have discussed this informally with many of your staff, who have been
extremely helpful in drafting this guidance. Because E.O. 13132 will soon become effective, we would
like to get this guidance out as quickly as possible. Please send your comments to Jeff Hill at
[email protected] (fax: 395-7285) by COB Friday, September 16, 1999.
Second, I wanted to inform you that we are postponing next week's Regulatory Working Group meeting
until October. In its place, I will hold a preliminary meeting with your staffs (a.k.a. the RWG Seconds) at
2:00 on Tuesday, September 14 in 248 OEOB. This meeting will focus on possible RWG initiatives and
will help ensure that we have a productive meeting in October. (If you have not yet submitted your ideas
for RWG initiatives, please do so.) We will follow up with details regarding the October meeting. Please
call Lisa Jones at 395-5897 so that we can have your staff members properly cleared into the OEOB.
Thank you.
federalism-guidance-9-7.w
Message Sent To:
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
david O.cooke(DOD)@7036971634@fax
Nancy Ann Minn DeParle(HCFA)@6906262@fax
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
[email protected]
Message Copied To:
STAFF DRAFT (September 7, 1999)
SUBJECT:
Guidance for Implementing E.O. 13132
President Clinton issued Executive Order No. 13132, "Federalism," on August 4, 1999
(64 Fed. Reg. 43255 (August 10, 1999), the "Order"). The Order emphasizes consultations with
State and local governments and enhanced sensitivity to their concerns. It establishes specific
requirements that the Federal government must follow as it develops and carries out policy
the
actions that affect State and local government. As the President stated, "[t]he executive order on
EO
federalism I signed will strengthen our partnership with State and local governments and ensure
that executive branch agencies are able to do their work on behalf of the American people."
The Order sets forth "Fundamental Federalism Principles" (Sec. 2), "Federalism
Policymaking Criteria" (Sec. 3), "Special Requirements for Preemption" (Sec. 4), and "Special
Requirements for Legislative Proposals" (Sec. 5). Please read the full text (see Appendix A).
This guidance is directed to procedural requirements -- what agencies should do to
comply with the Order and how they should document that compliance to OMB.
1. When does the Order take effect?
E.O. 13132 becomes effective on November 2, 1999 (Sec. 10(c)).
effective
11/2/99
2. What agencies does it cover?
E.O. 13132 applies to all Federal agencies, except for the independent regulatory agencies
all
(Sec. 1(c)). It encourages independent regulatory agencies to comply voluntarily with its
agencies
provisions (Sec. 9). E.O. 13132 adopts the definition of "agency" and "independent regulatory
agency" used by the Paperwork Reduction Act of 1995.
3. What is the role of an agency federalism official and which agencies must have them?
The federalism official has principal responsibility for the agency's implementation of the
Federalism
Order (Sec. 6(a)). Each federalism official must:
officials
must:
ensure that the agency considers federalism principles in its development of regulatory
policies with federalism implications;
ensure that the agency has an accountable process to ensure meaningful and timely
intergovernmental consultation in the development of regulatory policies that have
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
federalism implications; and
provide certifications of compliance to OMB.
Each separate agency and department must have a federalism official (Sec. 6(a)). The
federalism official may designate staff to assist in the performance of these duties.
4. When does an agency need to designate its federalism official?
Each agency should do so as soon as possible, preferably before November 2, 1999, the
Order's effective date. No later than January 31, 2000, the head of each agency must designate
the agency federalism official, and that official must submit to OMB a description of the
agency's consultation process. Each federalism official should promptly notify
in the
Office of Information and Regulatory Affairs (OIRA) (395-xxxx and e-mail address) of this
designation.
5. To what does the Order apply?
Section 2 sets forth "Fundamental Federalism Principles" to guide agencies in
formulating and implementing their policies. Section 3 sets forth "Federalism Policymaking
Criteria" to which agencies must adhere "to the extent permitted by law." These federalism
principles and criteria apply only 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" (Sec. 1(a)).
6. What are the Order's preemption requirements?
Under Section 4, "Special Requirements for Preemption," agencies must act in strict
accordance with governing law in taking action that preempts State law. Agencies must:
construe Federal statutes to preempt State law only where the exercise of State authority
directly conflicts with the exercise of Federal authority under the Federal statutes or there
is other clear evidence to conclude that Congress intended the agency to have the
authority to preempt State law;
restrict regulatory preemption of State law to the minimum level necessary;
defer states to
consult, to the extent practicable, with State and local officials if the agency foresees the
consult
w/state
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
possibility of a conflict between State law and Federally protected interests; and
provide all affected State and local officials notice and an opportunity to participate in the
proceedings when an agency proposes to preempt State law through agency adjudication
(for example, a regulatory permitting process) or a rulemaking,
The Order also establishes a process to ensure that agencies consider the "Special
Requirements for Preemption" in Section 4. For any draft final regulation with federalism
implications that is submitted for OIRA review under E:O. 12866, the Federalism Official must
certify that the requirements of E.O. 13132 concerning both the evaluation of Federalism policies
and consultation have been met in a meaningful and timely manner (Sec. 8(a)).
OIRA will require such certifications beginning on November 2, 1999, for all draft final
rules submitted for OIRA review under E.O. 12866. (See Appendix B for a recommended
certification format.) We understand that a final rule to be submitted for review beginning on
November 2, 1999, may have been promulgated as a Notice of Proposed Rulemaking (NPRM)
prior to August 4, 1999 (the date E.O. 13132 was signed). To the extent, for example, that the
intergovernmental consultation process had not occurred as called for by E.O. 13132, the
certification should so state. Agencies must publish a copy or summary of the certification in the
preamble to the final rule.
7. What does the Order require concerning agency development of proposed legislation?
Under Section 5, "Special Requirements for Legislative Proposals," agencies must not
submit to the Congress legislation that:
would directly regulate the States in ways that would interfere with functions essential to
the States' separate existence;
attach to Federal grants conditions that are not reasonably related to the purpose of the
grant; or
otherwise preempt State law, unless such preemption is consistent with the federalism
policies stated in Sections 2 and 3 of the Order (see Question 6, above).
The Order establishes a process to assure that agencies consider the "Special
Requirements for Legislation" stated in Section 5. In transmitting for OMB clearance proposed
legislation with federalism implications, the federalism official must certify that the "Special
Requirements for Legislative Proposals" set forth in Section 5 have been met (Sec. 8(b)). The
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
Legislative Reference Division will require such certifications beginning on November 2, 1999,
for all proposed legislation submitted for OMB review. (See Appendix C for a recommended
certification format.)
8. What does the Order require concerning agency development of regulations?
Section 6 directs 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" (Sec. 6(a)).
Before January 31, 2000, the agency's federalism official must submit to OMB "a
description of the agency's consultation process" (Sec. 6(a)). Each federalism official should
send these descriptions to
in OIRA (395-xxxx and e-mail address). Each description
should indicate how the consultation process identifies those policies with federalism
implications and the length of time necessary for meaningful consultation with affected State and
local governments.
The consultation procedures in Section 6 expand upon the consultation procedures in
Section 1 of E.O. 12875 (58 Fed. Reg. 58093 (October 28, 1993)). (E.O. 13132 revokes E.O.
12875.)
Intergovernmental consultation is required in two circumstances -- if a rule has federalism
implications, and if a rule imposes unfunded mandates. Specifically, each agency must assure, "
to the extent practicable and permitted by law," that its intergovernmental regulatory consultation
process includes "any regulation that has federalism implications [meaning, any rule that has "
substantial direct effects on the States "], that imposes substantial direct compliance costs on
State and local governments, and that is not required by statute" (Sec. 6(b)) If the Federal
government funds the mandate, then the Order does not require the agency to engage in
intergovernmental consultation (Sec. 6(b)(1)).
The consultation process must involve "State and local officials" (Sec. 6(a)).
E.O. 13132 defines this phrase to mean "elected officials of State and local
governments or their representative national organizations" (Sec. 1(d)). We
understand that many agencies consult routinely with their professional
counterparts in State and local governments (often civil servants, not elected
officials). We encourage agencies to continue to work with their professional
counterparts. The agencies must add elected State and local government officials
and their representative national organizations to the consultation process.
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
E.O. 13132 supplements, but does not supersede the requirements contained in
E.O. 12372. "Intergovernmental Review of Federal Programs" (Sec. 3(a)). E.O.
12372 seeks to improve the intergovernmental partnership between the Federal
Government and the States. It asks Federal agencies to rely on State and local
processes for consultation with elected State and local government officials that
would provide the non-Federal funds for, or that would be directly affected by,
proposed Federal assistance or direct Federal development. It allows States to
design their own review process and calls for Federal agencies to communicate
with State officials in the project planning cycle, make efforts to accommodate
State concerns, and explain Federal decisions.
Each agency must consult, to the extent practicable and permitted by law, with State and
local officials "early in the process of developing the proposed regulation" (Secs.
6(b)(2)(A) & (c)(1)). These consultations should seek comment on the federalism
implications or compliance costs as appropriate to the nature of the rulemaking under
development. The timing, nature and detail of the consultation involved should also be
appropriate to the nature of the regulation involved.
Each agency, before submitting a draft final regulation to OMB for review under E.O.
12866 and prior to promulgation of the regulation in final form, must prepare and place in "
a separately identified portion of the preamble to the regulation" a "federalism summary
impact statement" (Secs. 6(b)(2)(B) & (c)(2)).
The "federalism summary impact statement" must include -
--
"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" (Secs. 6(b)(2)(B) & 6(c)(2)).
To the extent that an agency has carried out intergovernmental consultations prior to
publication of the Notice of Proposed Rulemaking (NPRM), we strongly recommend that
the agency help State and local governments, and the public as a whole, by including a "
federalism summary impact statement" in its preamble to the NPRM.
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
When submitting a draft final regulation to OIRA for review, each agency must include a
copy of any formal policy-related correspondence from State and local officials, and must
upon request make available a copy of any other written communications submitted to
the agency by State and local officials (Secs. 6(b)(2)(C) & 6(c)(3)).
9. Will these consultations be subject to the Federal Advisory Committee Act?
No. The exemption to the Federal Advisory Committee Act provided in Section 204(b)
of title II of P.L. 104-4, the "Unfunded Mandates Reform Act of 1995" (UMRA), remains in
effect. As OMB stated in its guidelines for implementing Section 204(b):
In accordance with the legislative intent, the exemption should be read broadly to
facilitate intergovernmental communications on responsibilities or administration.
This exemption applies to meetings between Federal officials and employees and State,
local, or tribal governments, acting through their elected officers, officials, employees,
and Washington representatives, at which "views, information, or advice" are exchanged
concerning the implementation of intergovernmental responsibilities or administration,
including those that arise explicitly or implicitly under statute, regulation, or Executive
order. The scope of meetings covered by the exemption should be construed broadly to
include any meetings called for any purpose relating to intergovernmental responsibilities
or administration. Such meetings include, but are not limited to, meetings called for the
purpose of seeking consensus; exchanging views, information, advice, and/or
recommendations; or facilitating any other interaction relating to intergovernmental
responsibilities or administration. ("Guidelines and Instructions for Implementing
Section 204, 'State, Local, and Tribal Government Input," of Title II of Public Law
104-4," OMB Memorandum 95-20 (September 21, 1995), pp. 6-7, 60 Fed. Reg. 50651,
50653 (September 29, 1995); see Delegation of Authority To Issue Guidelines and
Instructions to Federal Agencies on Consulting With State, Local, and Tribal
Governments, President Clinton's Memorandum to the Director of the Office of
Management and Budget (August 25, 1995), 60 Fed. Reg. 45039 (August 29, 1995)).
10. What does the Order provide concerning flexibility for State and local waivers?
The waiver provisions in Section 7 are identical to those stated in Section 2 of E.O.
12875. The Order directs agencies to "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" (Sec. 7(a)). It also sets forth the circumstances under which
agencies must consider an application by a State for a waiver of statutory or regulatory
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
requirements. It encourages flexibility in granting waivers, but does not change applicable
Federal waiver review criteria, including the principle of budget neutrality. It also sets a target
completion date of 120 days after the filing of a complete waiver application for an agency
decision. These provisions apply "only to statutory or regulatory requirements that are
discretionary and subject to waiver by the agency" (Sec. 7(d)).
Please note that Section 223, "Rights of Small Entities in Enforcement Actions," of
Subtitle B, "Regulatory Enforcement Actions," of P.L. 104-121, the "Small Business Regulatory
Enforcement Act of 1996," remains in effect.
11. When will OMB report on agency implementation of this order to State and local officials?
No later than Friday, May 1, 2000, the OMB Director and the Assistant to the President
for Intergovernmental Affairs plan to confer with State and local officials to ensure that this
Order is being properly and effectively implemented (Sec. 8(c)).
Under UMRA Section 208, OMB must publish an annual report on agency compliance
with the requirements of Title II, including agency compliance with Section 204, "State, Local,
and Tribal Government Input." Our request next year for a description of your UMRA Section
204 consultations will include a request for a summary of your efforts to comply with this Order
as well.
12. With whom should we consult when we have questions concerning E.O. 13132?
If your staff have questions concerning this Order, please contact
in OIRA
(395-xxxx and e-mail address).
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
APPENDIX A:
EXECUTIVE ORDER NO. 13132
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.
STAFF DRAFT (September 7, 1999)
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(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:
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
(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:
(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 express preemption provision or there is some
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
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
STAFF DRAFT (September 7, 1999)
STAFF DRAFT (September 7, 1999)
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 he 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 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 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
STAFF DRAFT (September 7, 1999)
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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.
STAFF DRAFT (September 7, 1999)
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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.
/s/ WILLIAM J. CLINTON
THE WHITE HOUSE
August 4, 1999
STAFF DRAFT (September 7, 1999)
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THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
August 5, 1999
STATEMENT BY THE PRESS SECRETARY
President Clinton And Vice President Gore
Strengthening The Partnership With State And Local Governments
EO
strengthens.
President Clinton has signed an executive order entitled
partnership
"Federalism" that substantially strengthens the governing partnership
between the Administration and state and local governments. The new
Executive Order ensures comprehensive consultations and enhanced
sensitivity to the concerns of State and local Government by
establishing requirements that the Federal government must follow as it
develops and carries out policy actions that affect State and local
governments.
In a letter to the President from leaders of the seven major
intergovernmental organizations, the bipartisan group of state and local
officials stated, "The executive order constructively responds to the
concerns we raised during these consultations and provides to federal
agencies strengthened guidance on the importance of federalism and state
and local authority." " The officials also expressed appreciation to the
President for "consulting extensively" with them prior to issuing the
consulted w/
new Federalism executive order.
them even in
writing the
The order directs executive agencies to: (a) closely examine
order
statutory authority supporting any action that would limit the
policymaking discretion of state and local governments and carefully
assess the necessity for such action; (b.) construe Federal statutes to
preempt state law only where the exercise of State authority directly
conflicts with the exercise of Federal authority under the Federal
statutes or there is other clear evidence to conclude that Congress
intended the agency to have the authority to preempt state law; (c) not
submit legislation that would directly regulate the States in ways that
would interfere with functions essential to the States' separate
existence; and (d) not attach to Federal grants conditions that are not
reasonably related to the purpose of the grant. At the same time, the
Order makes clear that federal action is appropriate in the presence of
a problem of national scope or significance.
The order requires each Federal agency to establish an accountable
process to ensure meaningful and timely input by State and local
officials in the development of regulatory policies that have Federalism
implications. It also requires that each agency, within 90 days of the
order, designate an official within the agency with principal
responsibility for the agency's implementation of the order.
Further, the order requires that, when agencies transmit to the
Office of Management and Budget (OMB) proposed legislation or draft
final regulations with Federalism implications, they certify that the
requirements of the order have been met in a meaningful and timely
manner.
Buildson
The Federalism Executive Order builds upon the Clinton-Gore
Administration's strong partnership with state and local governments on
record of
issues such as the Unfunded Mandates Reform Act, welfare reform, the
partners.
UMRA,
welfare ref-
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Children's Health Insurance Program, workforce development, and the
CHIP,
Clean Water Act, among others. The companion Executive Order on
Clean water.
Consultation and Coordination with Indian Tribal Governments (E.O.
13084) will be reviewed and strengthened as well.
30-30-30
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