This section of the FEDERAL REGISTER

contains documents other than rules or

proposed rules that are applicable to the

public. Notices of hearings and investigations,

committee meetings, agency decisions and

rulings, delegations of authority, filing of

petitions and applications and agency

statements of organization and functions are

examples of documents appearing in this

section.

Notices Federal Register

81 

Vol. 76, No. 1 

Monday, January 3, 2011 

1Exec. Order No. 13,132, § 1(c). 

2 Id. at § 9. 

3Exec. Order No. 13,132, 3 CFR 206 (2000), 

reprinted in 3 U.S.C. 301 (2006). 

4President Reagan’s Executive Order on 

Federalism adopted, nearly verbatim, ACUS 

recommendations. Compare Exec. Order No. 

12,612, 3 CFR 252, §§ 4(d) & (e) (1988), reprinted 

in 5 U.S.C. 601 (1994), with Administrative 

Conference of the United States, Recommendation 

No. 84–5, Preemption of State Regulation by 

Federal Agencies ¶¶ 4, 5 (1984). 

5Exec. Order No. 13,132, § 6(a). The consultation 

process must involve ‘‘elected officials of State and 

local governments or their representative national 

organizations.’’ Id. at §§ 1(d), 6(a). 

6 Id. at § 4(e). 

7 Id. at § 6(c). 

8 Id. at § 6(c)(1). 

9 Id. at § 6(c)(2) (requiring a FIS for any regulation 

‘‘that has federalism implications and that preempts 

Continued 

ADMINISTRATIVE CONFERENCE OF 

THE UNITED STATES 

Adoption of Recommendation 

AGENCY: Administrative Conference of 

the United States. 

ACTION: Notice. 

SUMMARY: The Administrative 

Conference of the United States adopted 

the attached recommendation at its 

Fifty-third Plenary Session. The 

recommendation addresses issues 

relating to Federal agency procedures 

regarding consultation with State and 

local governments and for considering 

State interests in rulemakings that may 

result in the preemption of State law. 

FOR FURTHER INFORMATION CONTACT: 

Emily F. Schleicher, Designated Federal 

Officer, Administrative Conference of 

the United States, Suite 706 South, 1120 

20th Street, NW., Washington, DC 

20036; Telephone 202–480–2080. 

SUPPLEMENTARY INFORMATION: The 

Administrative Conference of the 

United States was established by the 

Administrative Conference Act, 5 U.S.C. 

591–596. The Conference studies the 

efficiency, adequacy, and fairness of the 

administrative procedures used by 

Federal agencies in carrying out 

administrative programs, and makes 

recommendations for improvements to 

the agencies, collectively or 

individually, and to the President, 

Congress, and the Judicial Conference of 

the United States (5 U.S.C. 594(1)). At 

its Fifty-third Plenary Session, held 

December 9 and 10, 2010, the Assembly 

of the Administrative Conference of the 

United States adopted the attached 

recommendation. For further 

information about the Conference and 

its activities, see http://www.acus.gov. 

Recommendation 2010–1, ‘‘Agency 

Procedures for Considering Preemption 

of State Law,’’ addresses issues relating 

to agency procedures for complying 

with Federal requirements regarding 

consultation with State and local 

governments and for considering State 

interests in rulemakings that may result 

in the preemption of State law. The goal 

of the recommendation is not to favor or 

disfavor preemption, but to improve 

agency procedures in potentially 

preemptive rulemakings. The 

recommendation reiterates a previous 

Conference recommendation that 

Congress clearly state its preemptive 

intent in the text of the statutes it 

charges Federal agencies with 

implementing. It recommends that 

agencies formulate appropriate internal 

procedures to ensure consultation with 

representatives of State interests and to 

ensure that agencies evaluate the 

authority and basis asserted in support 

of a preemptive rulemaking. It seeks to 

increase transparency regarding internal 

agency policies and recommends ways 

to improve external mechanisms for 

enforcing the applicable Federal 

requirements. 

The full text of the recommendation 

is set out in the Appendix below. The 

recommendation will be transmitted to 

affected agencies and to appropriate 

committees of the United States 

Congress. The Administrative 

Conference has advisory powers only, 

and the decision on whether to 

implement the recommendation must be 

made by the affected agencies or by 

Congress. 

The Administrative Conference 

ceased operations in 1995 due to 

termination of funding, but was reestablished in 2010, and the Council of 

the revived Administrative Conference 

held its first meeting in August 2010. 

The December 2010 Plenary Session 

was the first held after the resumption 

of operations. Recommendations and 

statements of the Administrative 

Conference are published in full text in 

the Federal Register. The research 

report on which Recommendation 

2010–1 is based and a complete listing 

of past recommendations and 

statements are available at http:// 

www.acus.gov. 

The transcript of the Plenary Session 

is available for public inspection at the 

Conference’s offices at 1120 20th Street, 

NW., Suite 706 South, Washington, DC. 

Authority: 5 U.S.C. 591–96. 

Dated: December 27, 2010. 

Jonathan R. Siegel, 

Director of Research and Policy. 

Appendix—Recommendations of the 

Administrative Conference of the 

United States 

Recommendation 2010–1, Agency 

Procedures for Considering Preemption of 

State Law (Adopted December 9, 2010) 

Preamble 

Presidents Reagan and Clinton both issued 

executive orders mandating executive branch 

agencies,1 and urging independent agencies,2

to take certain measures to ensure proper 

respect for principles of federalism. 

Executive Order 13132, ‘‘Federalism,’’ issued 

by President Clinton on August 4, 1999 (the 

‘‘Order’’),3 is still in effect today, and is an 

amended version of President Reagan’s 

Executive Order on Federalism, Executive 

Order 12612.4 The Order identifies 

federalism principles that bear consideration 

in policymaking and specifies procedures for 

intergovernmental consultation, emphasizing 

consultations with State and local 

governments and enhanced sensitivity to 

their concerns. The Order requires 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.’’ 5 The Order requires agencies 

to ‘‘provide all affected State and local 

officials notice and an opportunity for 

appropriate participation in the proceedings’’ 

whenever an agency proposes to preempt 

State law through adjudication or 

rulemaking.6 It establishes specific 

procedures for ‘‘any regulation that has 

federalism implications and that preempts 

State law,’’ 7 requiring agencies to consult 

with State and local officials ‘‘early in the 

process of developing the proposed 

regulation,’’ 8 and to prepare a federalism 

impact statement (‘‘FIS’’).9


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82 Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Notices 

State law’’); id. at § 1(a) (defining ‘‘federalism 

implications’’). 

10Memorandum from Jacob J. Lew, Director, 

Office of Mgmt. & Budget, to the Heads of Executive 

Departments and Agencies, and Independent 

Regulatory Agencies, Guidance for Implementing 

E.O. 13132, ‘‘Federalism’’ (Oct. 28, 1999), at 2, 

available at http://www.whitehouse.gov/sites/ 

default/files/omb/assets/omb/inforeg/m00–/02.pdf 

(last visited October 29, 2010) (‘‘Federalism 

Guidelines’’). 

11Exec. Order No. 13,132, § 6(a); Federalism 

Guidelines 2. 

12Federalism Guidelines 4–5. 

13Exec. Order No. 13,132, § 8(a). 

14Memorandum for the Heads of Executive 

Departments and agencies (May 20, 2009), 74 FR 

24,693, 24,693–94 (May 22, 2009), available at 

http://www.gpo.gov/fdsys/pkg/FR–2009–05–22/pdf/ 

E9–12250.pdf#page=1 (last visited October 29, 

2010). 

15Executive Order 12612 was in effect during this 

time period. 

16U.S. General Accounting Office, GAO/T–GGD– 

99–93, Implementation of Executive Order 12612 in 

the Rulemaking Process 1 (1999). The exact number 

of federalism impact assessments during this period 

is in some doubt but appears to be quite small. See 

Nina A. Mendelson, Chevron and Preemption, 102 

Mich. L. Rev. 737, 784 n.192 (2004) (reporting 

identification of 9 federalism impact assessments 

from the fourth quarter of 1998); see also id at 783– 

84 (demonstrating that federalism impact 

statements are relatively rare and of ‘‘poor quality’’). 

Of course, many rules do not require a federalism 

impact assessment. The number of rules that should 

have included one is unknown, but the very small 

number that did suggests that agencies were ‘‘not 

implementing the order as vigorously as they 

could.’’ GAO report, supra, at 13. 

17See Catherine M. Sharkey, Federalism 

Accountability: ‘‘Agency Forcing’’ Measures, 58 

Duke L.J. 2125, 2131–439 (2009) (analyzing several 

rulemaking proceedings in which an agency’s 

notice of proposed rulemaking stated that a rule 

would have no federalism impact, but in which the 

agency stated that the final rule had preemptive 

effect, in some cases without preparing a federalism 

impact statement or consulting with state officials); 

see also Nina A. Mendelson, A Presumption 

Against Agency Preemption, 102 Nw. L. Rev. 695, 

719 (2008) (reporting results from a further, 2006 

study of preemptive rules, which disclosed that, out 

of six preemptive rulemakings studied, only three 

contained federalism impact analysis, and only one 

of the analyses ‘‘went beyond stating either that the 

agency concluded that it possessed statutory 

authority to preempt or that the document had been 

made available for comment, including to state 

officials’’). 

18American Bar Association House of Delegates, 

Resolution 117, available at http:// 

www.abanow.org/2010/07/am-2010-117/ (last 

visited Nov. 2, 2010). 

19The Big Seven include the Council of State 

Governments, the National Governors Association, 

the National Conference of State Legislatures, the 

National League of Cities, the U.S. Conference of 

Mayors, the National Association of Counties, and 

the International City/County Management 

Association. 

Individual agencies are responsible for 

implementing Executive Order 13132, and 

the Office of Information and Regulatory 

Affairs (‘‘OIRA’’), located within the Office of 

Management and Budget (‘‘OMB’’), has issued 

procedural guidelines on ‘‘what agencies 

should do to comply with the Order and how 

they should document that compliance to 

OMB.’’ 10 These Federalism Guidelines 

provide that each agency and department 

should designate a federalism official 

charged with: (1) Ensuring that the agency 

considers federalism principles in its 

development of regulatory and legislative 

policies with federalism implications; (2) 

ensuring that the agency has an accountable 

process for meaningful and timely 

intergovernmental consultation in the 

development of regulatory policies that have 

federalism implications; and (3) providing 

certification of compliance to OMB. The 

federalism official must submit to OMB ‘‘a 

description of the agency’s consultation 

process,’’ 11 that ‘‘indicate[s] how the agency 

identifies those policies with federalism 

implications and the procedures the agency 

will use to ensure meaningful and timely 

consultation with affected State and local 

officials.’’ 12 For any draft final regulation 

with federalism implications submitted for 

OIRA review under Executive Order 12866, 

the federalism official must certify that the 

requirements of Executive Order 13132 

concerning both the evaluation of federalism 

policies and consultation have been met in 

a meaningful and timely manner.13

President Obama’s official policy on 

preemption, articulated in a May 20, 2009 

presidential ‘‘Memorandum for Heads of 

Executive Departments and Agencies’’ 

(‘‘Preemption Memorandum’’), provides that 

‘‘[p]reemption of State law by executive 

departments and agencies should be 

undertaken only with full consideration of 

the legitimate prerogatives of the States and 

with a sufficient legal basis for 

preemption.’’ 14 It specifically admonishes 

department and agency heads to cease the 

practice of including preemption statements 

in the preamble to a regulation without 

including it in the codified regulation. And 

it further directs agencies to include 

preemption provisions in codified 

regulations only to the extent ‘‘justified under 

legal principles governing preemption, 

including the principles outlined in 

Executive Order 13132.’’ Finally, the 

Preemption Memorandum requests that 

agencies conduct a 10-year retrospective 

review of regulations including preemption 

statements, whether in the preamble or the 

codified regulation, ‘‘in order to decide 

whether such statements or provisions are 

justified under applicable legal principles 

governing preemption.’’ 

An empirical evaluation of agency 

practices reveals that compliance with the 

preemption provisions of Executive Order 

13132 has been inconsistent, although 

President Obama’s Preemption Memorandum 

has effectuated a meaningful shift in 

preemption policies within a number of 

agencies. This evaluation was based on 

statistical analysis of agency rulemaking 

practices, on particular examples of agency 

rulemakings, on recent interviews with 

officials at the National Highway Traffic 

Safety Administration (‘‘NHTSA’’), Food and 

Drug Administration (‘‘FDA’’), Office of the 

Comptroller of the Currency (‘‘OCC’’), 

Consumer Product Safety Commission 

(‘‘CPSC’’), Federal Trade Commission (‘‘FTC’’), 

and Environmental Protection Agency 

(‘‘EPA’’), and on consideration of legislative 

changes to statutes relevant to agency 

preemption and an independent review of 

the agencies’ respective rulemaking dockets 

and intervention in litigation. 

There appears to be consensus that the 

requirements of the preemption provisions of 

Executive Order 13132—including 

consultation with the States and the 

requirement for ‘‘federalism impact 

statements’’—are sound. But compliance with 

these provisions has been inconsistent, and 

difficulties have persisted across 

administrations of both political parties. A 

1999 GAO Report identified only five rules— 

out of a total of 11,000 issued from April 

1996 to December 1998 15—that included a 

federalism impact assessment.16 Case studies 

of particular rulemaking proceedings have 

revealed failures to comply with Executive 

Order 13132.17 In August 2010, reflecting 

continued concern with agency practices in 

this area, the ABA House of Delegates 

adopted a recommendation developed by the 

ABA Task Force on Federal Preemption of 

State Tort Laws, aimed at improving 

compliance with the preemption provisions 

of Executive Order 13132.18

This Administrative Conference 

Recommendation is intended to improve 

agency procedures for implementing the 

preemption provisions of Executive Order 

13132 and to increase transparency regarding 

internal agency policies and external 

enforcement mechanisms designed to ensure 

compliance with those provisions. The goal 

is not to favor or disfavor preemption, but to 

improve agency procedures in potentially 

preemptive rulemakings. The 

Recommendation is also intended to 

facilitate Federal agency consultation with 

State representatives, such as the ‘‘Big 

Seven,’’ a group of nonpartisan, non-profit 

organizations composed of State and local 

government officials,19 and, conversely, to 

facilitate State officials’ awareness of and 

responsiveness to, opportunities to consult 

with Federal officials and to comment in 

regulatory proceedings that may have 

preemptive effect. Improved communication 

on preemption issues would result if State 

and local government officials or their 

representative organizations availed 

themselves of opportunities to become aware 

of whether Federal agencies are engaging in 

potentially preemptive rulemaking 

proceedings, for example, by monitoring the 

Federal Register or using relevant Internet 

dashboards, such as are available at http:// 

www.reginfo.gov. Agencies can ensure that 

these tools are optimally useful to State 

representatives by clearly posting relevant 

information on their individual Web sites 

and providing appropriate information for 

inclusion in the semiannual Unified Agenda. 

Finally, this Recommendation is aimed at 

both executive branch and independent 

agencies that engage in preemptive 

rulemaking, with the recognition that the 

executive directives described above bind the 

former and urge voluntarily compliance by 

the latter. 

The Conference recognizes the danger of 

encumbering the rulemaking process with 

too many formal requirements. Therefore, in 

crafting this Recommendation, the 

Conference has remained mindful of the 

continuing validity of its previous 


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Federal Register / Vol. 76, No. 1 / Monday, January 3, 2011 / Notices 83 

20Administrative Conference of the United 

States, Recommendation No. 93–4, Improving the 

Environment for Agency Rulemaking (1993). 21Administrative Conference of the United 

States, Recommendation No. 84–5, Preemption of 

State Regulation by Federal Agencies (1984). 

22Office of Info. & Regulatory Affairs, Circular A– 

4 on Regulatory Analysis (2003), available at http:// 

www.whitehouse.gov/sites/default/files/omb/assets/ 

regulatory_matters_pdf/a-4.pdf (last visited October 

15, 2010). 

Recommendation aimed at reducing 

‘‘ossification’’ of the regulatory process.20 The 

Conference recognizes, however, that certain 

principles, including those embodied in the 

preemption provisions of Executive Order 

13132, are sufficiently important to warrant 

systematic consideration by agencies 

engaging in rulemaking. The following 

Recommendation has accordingly been 

structured both to encourage compliance 

with existing executive directives and 

increase the efficiency of internal agency 

processes designed to ensure such 

compliance. 

Recommendation 

1. The Conference reiterates its previous, 

related recommendation that ‘‘Congress 

should address foreseeable preemption issues 

clearly and explicitly when it enacts a statute 

affecting regulation or deregulation of an area 

of conduct.’’ 21

Internal Procedures for Compliance With the 

Preemption Provisions of Executive Order 

13132 

2. Agencies that engage in rulemaking 

proceedings that may have preemptive effect 

on State law should have internal written 

guidance to ensure compliance with the 

preemption provisions of Executive Order 

13132, which should describe: 

a. How the agency determines the need for 

any preemption; 

b. How the agency consults with State and 

local officials concerning preemption; and 

c. How the agency otherwise ensures 

compliance with the preemption provisions 

of Executive Order 13132. 

3. Agencies should post their internal 

guidance for compliance with the 

preemption provisions of Executive Order 

13132 on the Internet or otherwise make 

publicly available the information contained 

therein. 

4. Agencies should have an oversight 

procedure to improve agency procedures for 

implementing the preemption provisions of 

Executive Order 13132. This procedure 

should include an internal process for 

evaluating the authority and basis asserted in 

support of a preemptive rulemaking. The 

agency should provide a reasoned basis, with 

such evidence as may be appropriate, that 

supports its preemption conclusion. 

Updated Policies To Ensure Timely 

Consultation With State and Local Interests 

Concerning Preemption 

5. Agencies should have a consultation 

process that contains elements such as the 

following: 

a. Agencies should use an updated contact 

list for representatives of State interests, 

including but not limited to the ‘‘Big Seven.’’ 

The Administrative Conference will maintain 

such a list for use by agencies. 

b. Agencies should maintain some form of 

regularized personal contact in order to build 

relationships with representatives of State 

interests. 

c. Agencies should disclose to the public 

when they meet with the representatives of 

State interests in the course of rulemaking 

proceedings that may preempt State law. The 

disclosure should include the identity of the 

organization(s) or institution(s) that 

participate and the subject matter of the 

discussion. 

d. Agencies should reach out to 

appropriate State and local officials early in 

the process when they are considering 

preemptive rules. Such outreach should, to 

the extent practicable, precede issuance of 

the notice of proposed rulemaking. 

6. Agencies should establish contact with 

organizations and State and local regulatory 

bodies and officials that have relevant 

substantive expertise or jurisdiction. 

7. Agencies should adopt, as one 

component of their notice practice, a 

procedure for notifying State attorneys 

general when they are considering rules that 

may have preemptive effect. This may be 

achieved via direct communication with 

State attorneys general and by contacting an 

appropriate representative organization such 

as, for example, the National Association of 

Attorneys General. 

Actions by OIRA/OMB To Improve the 

Process 

8. OIRA/OMB should request agencies to 

post on their open government Web sites a 

summary of the agencies’ responses to the 

directive contained in the Preemption 

Memorandum to conduct a 10-year 

retrospective review of preemptive 

rulemaking. 

9. OIRA/OMB should update its 

Federalism Guidelines with respect to 

preemption. 

10. OIRA should include reference to 

Executive Order 13132 in Circular A–4.22

[FR Doc. 2010–32985 Filed 12–30–10; 8:45 am] 

BILLING CODE 6110–01–P 

DEPARTMENT OF AGRICULTURE 

Animal and Plant Health Inspection 

Service 

[Docket No. APHIS–2010–0041] 

Pioneer Hi-Bred International, Inc.; 

Availability of Petition and 

Environmental Assessment for 

Determination of Nonregulated Status 

for Corn Genetically Engineered To 

Produce Male Sterile/Female Inbred 

Plants 

AGENCY: Animal and Plant Health 

Inspection Service, USDA. 

ACTION: Notice. 

SUMMARY: We are advising the public 

that the Animal and Plant Health 

Inspection Service has received a 

petition from Pioneer Hi-Bred 

International, Inc., seeking a 

determination of nonregulated status for 

corn designated as DP–32138–1, which 

has been genetically engineered to 

produce male sterile/female inbred 

plants for the generation of hybrid corn 

seed that is non-transgenic. The petition 

has been submitted in accordance with 

our regulations concerning the 

introduction of certain genetically 

engineered organisms and products. In 

accordance with those regulations, we 

are soliciting comments on whether this 

genetically engineered corn is likely to 

pose a plant pest risk. We are also 

making available for public comment an 

environmental assessment for the 

proposed determination of nonregulated 

status. 

DATES: We will consider all comments 

that we receive on or before March 4, 

2011. 

ADDRESSES: You may submit comments 

by either of the following methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov/fdmspublic/ 

component/ 

main?main=DocketDetail&d=APHIS2010-0041 to submit or view comments 

and to view supporting and related 

materials available electronically. 

• Postal Mail/Commercial Delivery: 

Please send one copy of your comment 

to Docket No. APHIS–2010–0041, 

Regulatory Analysis and Development, 

PPD, APHIS, Station 3A–03.8, 4700 

River Road Unit 118, Riverdale, MD 

20737–1238. Please state that your 

comment refers to Docket No. APHIS– 

2010–0041. 

Reading Room: You may read any 

comments that we receive on this 

docket in our reading room. The reading 

room is located in room 1141 of the 

USDA South Building, 14th Street and 

Independence Avenue, SW., 

Washington, DC. Normal reading room 

hours are 8 a.m. to 4:30 p.m., Monday 

through Friday, except holidays. To be 

sure someone is there to help you, 

please call (202) 690–2817 before 

coming. 

Other Information: Additional 

information about APHIS and its 

programs is available on the Internet at 

http://www.aphis.usda.gov. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Rick Coker, Regulatory Analyst, 

Biotechnology Regulatory Services, 

APHIS, 4700 River Road Unit 147, 

Riverdale, MD 20737–1236; (301) 734– 

5720, e-mail: 

richard.s.coker@aphis.usda.gov. To 

obtain copies of the petition, draft 

environmental assessment, or plant pest 

risk assessment, contact Ms. Cindy Eck 


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