64 FR 43255; August 10, 1999

Executive Order (E.O.) 13132 - Federalism - was issued by President William J. Clinton in 1999. The E.O.'s objective is to guarantee the Constitution's division of governmental responsibilities between the federal government and the states. It furthers the policies of the Unfunded Mandates Reform Act.

To the extent practicable and permitted by law, the Agency cannot promulgate two types of rules unless we meet certain conditions as described below. The two types of rules are:

1. rules with Federalism Implications (FI), substantial direct compliance costs on state and local (S/L) governments, and not required by statute, and
2. rules with FI and that preempt S/L law.

FI is defined as having substantial direct effects on states or local governments (individually or collectively), on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

Conditions for Rulemaking

The Agency cannot promulgate the first type of rule unless we:

• provide funds necessary to pay direct compliance costs of the S/L governments, or
• early in the process before promulgation, consult with elected S/L officials or their representative national organizations.

We cannot promulgate the second type unless we consult with elected S/L officials or their representative national organizations early in the process before promulgation.

For these two types of rules, we also must:

• adhere to the fundamental principles in §2 of the E.O. and comply, to the extent permitted by law, with the general policymaking criteria in §3 of the E.O.;
• provide in a separate preamble section a federalism summary impact statement;
• make available to the Office of Management and Budget any written communications from S/L officials; and
• for final rules subject to E.O. 12866 review, include certification from EPA's Designated Federalism Official stating EPA has met E.O. requirements.