Executive Order 13132 - Federalism

See § 9: "Independent regulatory agencies are encouraged to comply with the provisions of this order."

This EO sets forth principles and criteria to which agencies must adhere in policymaking that has federalism implications. These include taking action only when a problem is of “national significance” and providing “the maximum administrative discretion possible” where States administer Federal statutes and regulations. Agencies must designate an official principally responsible for implementing the EO. Independent regulatory agencies are encouraged to comply with the provisions of this order. 

Coverage

The EO covers policies with federalism implications. This means “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.”

Preemption

1. Statutory Construction. Agencies shall construe statutes to preempt State law only if there is “clear evidence” Congress intended preemption, or State action “conflicts with” Federal action. 

2. Minimum Necessary. Agencies must restrict regulatory preemption to the minimum necessary to achieve the statutory objectives.

Consultation 

1. Process. Agencies must 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.”

2. Federalism Official. Agencies must designate an official principally responsible for implementing the EO.

3. Compliance Costs and Preemption. To the extent practicable and permitted by law, agencies shall not issue rules with federalism implications that (1) impose “substantial direct compliance costs on State and local governments,” if not required by statute, unless they comply with a or b, below, or (2) preempt State law, unless they comply with b, below:

a. Funds Provided. The Federal government must provide money for the direct compliance costs of State and local governments.

b. Federalism Summary Impact Statement.  

(1) Consultation.  Agencies must consult with State and local officials “early in the process of developing the proposed regulation.”

(2) Preamble. In a separately identified portion of the rule’s preamble, agencies must provide a federalism summary impact statement describing (a) the prior consultations with State and local officials, (b) the nature of the officials’ concerns and the agencies’ justification for the rule, and (c) the extent to which the concerns have been met.

(3) Written Communications. Agencies must make available to OMB State and local officials’ written communications.

Waivers

As appropriate, practicable, and permitted by law, agencies must streamline the processes for waivers of statutes and rules for State and local governments, consider increasing opportunities for using “flexible policy approaches,” and make decisions on waivers within 120 days.

OMB Review 

Agencies submitting to OMB under EO 12866 final rules with federalism implications must include a certification from their Federalism Official that this EO’s requirements were “met in a meaningful and timely manner.”