STATEMENT OF RANDOLPH D. MOSS ACTING ASSISTANT ATTORNEY GENERAL before the COMMITTEE ON GOVERNMENTAL AFFAIRS Mr. Chairman, members of the Committee, I am honored to be here today to testify regarding S. 1214, the Federalism Accountability Act of 1999. Mr. Spotila, representing the Office of Information and Regulatory Affairs of the Office of Management and Budget-bas discussed the Administration's concerns with section 7 of the bill, which would require Federal agencies to prepare and publish federalism assessments for certain Federal rules. My remarks will focus on section 6, which would establish rules of construction relating to statutory and regulatory preemption. Section 6 would establish new rules of construction relating to Federal preemption of State law. Sections 6(a) and 6(b) would alter the rules under which courts currently determine whether Congress has preempted State law by statute or authorized preemption of State law by regulation. Section 6(c) would operate more broadly, requiring that any ambiguity in the Federalism Accountability Act or in any other Federal law be construed in favor of preserving the authority of the States and the people. Although we are still evaluating the potential implications of these provisions, we believe that each raises questions that warrant careful consideration. -5 of the Big 7 litigate their failing to be included? What about individual State or local governments that do not agree with positions taken by the Big 7? Do they each need to be invited to participate? What kind of objectively documented finding does a "federalism official" have to make to determine that a rulemaking does not have “a federalism impact,”and thus does not require a “federalism assessment?" The agencies would have to consider, plan for, and determine how to resolve questions like these. This would take time. It also might keep them from even more important tasks, like paperwork reduction initiatives, the review and revision of outdated and burdensome existing rules, and the conversion of rules into plain language. For that matter, each agency would have to do more than just ensure that all of those who were supposed to be notified and consulted were satisfied with the agency's compliance with Section 7. Others with an interest in the rulemaking itself – including various special interests could potentially challenge the rulemaking because they were not satisfied with that compliance. They might even do so just to hamstring the agency and slow down its regulatory efforts. Agencies would thus have an even broader group to consider when designing a consultation effort. We all know what road is paved with good intentions. While we respect the careful thought and sincere concern underlying S. 1214, we believe that it requires some changes to avoid unintended, adverse consequences. We would be pleased o work with you and your staff on these issues. Thank you for the opportunity to appear before you today. I would be happy to answer any questions you may have. ##### STATEMENT OF RANDOLPH D. MOSS ACTING ASSISTANT ATTORNEY GENERAL before the COMMITTEE ON GOVERNMENTAL AFFAIRS Mr. Chairman, members of the Committee, I am honored to be here today to testify regarding S. 1214, the Federalism Accountability Act of 1999. Mr. Spotila, representing the Office of Information and Regulatory Affairs of the Office of Management and Budget,-bas discussed the Administration's concerns with section 7 of the bill, which would require Federal agencies to prepare and publish federalism assessments for certain Federal rules. My remarks will focus on section 6, which would establish rules of construction relating to statutory and regulatory preemption. Section 6 would establish new rules of construction relating to Federal preemption of State law. Sections 6(a) and 6(b) would alter the rules under which courts currently determine whether Congress has preempted State law by statute or authorized preemption of State law by regulation. Section 6(c) would operate more broadly, requiring that any ambiguity in the Federalism Accountability Act or in any other Federal law be construed in favor of preserving the authority of the States and the people. Although we are still evaluating the potential implications of these provisions, we believe that each raises questions that warrant careful consideration. determined by examining Congress's intentions with respect to preemption.' Congressional intent to preempt can be stated explicitly, in the terms of a statutory provision addressing preemption. This is commonly referred to as "express preemption." In addition, congressional intent can also be conveyed implicitly, through the establishment of Federal law that conflicts with State law, commonly known as "conflict preemption," or that occupies an entire field and leaves no room for State lawmaking, commonly known as "field preemption." Conflict preemption occurs where Federal law and State law are in direct conflict or where State law stands as an obstacle to the achievement of Federal objectives. Field preemption occurs where the creation of a pervasive system of Federal regulation makes it reasonable to infer that Congress intended to disallow supplemental State law measures or where Congress legislates in an area where the Federal interest is so dominant that a Federal system can be presumed to displace State laws on the same subject. The doctrine of field preemption has formed the basis for Federal preemption of State law in a number of important areas, including nuclear safety, collective bargaining, and alien registration.2 Section 6(a) would change the rules under which courts and agencies infer congressional intent to preempt by statute. Under section 6(a), no Federal statute enacted after the effective For a general summary of Supreme Court doctrine concerning the preemption of State law by Federal statutes, see English v. General Elec. Co., 496 U.S. 72, 79 (1990). Accord Boggs v. Boggs, 520 U.S. 833, 839-41 (1997). 2 See Pacific Gas & Electric Co. v. State Energy Resources Conservation & Dev. Comm'n, 461 U.S. 190, 212-13 (1983) (nuclear safety); Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 750-51 (1985) (collective bargaining); Hines v. Davidowitz, 312 U.S. 52, 67 (1941) (registration of aliens). date of the Federalism Accountability Act would preempt State law unless the statute contained an express statement of Congress's intent to preempt or there was a "direct conflict" between the Federal statute and State law so that the two could not “be reconciled or consistently stand together." This provision would profoundly alter the Federal courts' longstanding approach to preemption by Federal statute. It would apparently abolish the doctrine of field preemption and impose significant new limits on conflict preemption.' The findings section of the Act notes that this change is made necessary by Federal court preemption rulings that have applied current doctrine to produce results “contrary to or beyond the intent of Congress.” S. 1214, § 2(5). It is not clear, however, which applications of existing preemption doctrine are viewed as having misinterpreted the intent of Congress. Our review indicates that Federal court decisions involving field preemption and obstacle conflict preemption generally have demonstrated a strong commitment to the avoidance of preemption that is not necessary to the achievement of clear statutory objectives. The Supreme Court has determined, for example, that Federal law occupies the field of nuclear safety regulation, but does not preempt State regulation of nuclear utilities that does not bear directly on safety; and that the National Labor Relation Act occupies the field of collective bargaining, but not the field 3 The Supreme Court has stated that conflict preemption and field preemption should not be viewed as "rigidly distinct" categories and has suggested that "field preemption may be understood as a species of conflict preemption," since State law operating within a preempted field can be seen to conflict with Congress's intent to exclude State regulation. English v. General Elec., 496 U.S. at 79 n.5. Section 6(a) of S. 1214, by confining implied preemption to situations involving “a direct conflict” between irreconcilable or inconsistent directives, would appear to foreclose recognition of field preemption as a subclass of conflict preemption for purposes of section 6 of the bill. |