Agency Procedures for Considering Preemption of State Law

  • Recommendation number: 2010-1
  • Adopted on: December 9, 2010
  • Publication Date: December 9, 2010
  • Committees: Regulation
  • Tags: Preemption

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.


76 Fed. Reg. 81 (Jan. 3, 2011).