Principles and Criteria
Executive Order 13132 sets forth principles and criteria to which Federal agencies must adhere in policymaking that has Federalism implications. These including taking action only when a problem is of "national significance" and providing "the maximum administrative discretion possible" where States administer Federal statutes and regulations.
The E.O. 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."
Agencies must construe statutes to preempt State law only where there is express preemption or "clear evidence" that Congress intended preemption, or State action "conflicts with" Federal action. If the statute does not preempt, agencies shall construe it to authorize preemption only when State action "directly conflicts" with Federal action or there is "clear evidence" that Congress intended to give authority. Pursuant to a Presidential Memorandum, agencies should adhere to the following:
1. Agencies should not include statements in regulatory preambles that they intend to preempt State law through regulation, unless such preemption is also included in the codified regulation.
2. Agencies should not include preemption provisions in codified regulations unless "justified under legal principles governing preemption, including" E.O. 13132.
Agencies must consult, to the extent practicable, with State and local officials when possible conflicts are identified and provide them opportunities for "appropriate participation" in rulemakings. The ACUS has prepared a contact list for representatives of State interests, including but not limited to the "Big Seven."
DOT Policies and Procedures
The DOT has internal procedures to ensure compliance with the preemption provisions of Executive Order 13132. Many of our procedures are modeled after Administrative Conference of the United States (ACUS) recommendations found in a December 9, 2010, Recommendation 2010-1 on "Agency Procedures for Considering Preemption of State Law." For example, DOT encourages relationship building with State and local officials and reaching out to those officials when we consider rules that may have a preemptive effect. When done in the course of rulemaking proceedings, we disclose to the public when meetings take place by placing a memorandum in the rulemaking docket in accordance with our policies on ex parte communications.
To access a list of DOT rulemakings with Federalism implications, please click here.
For information on consultation and coordination with Indian Tribal Governments, please click here.