[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.

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    (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.