Comment: Some commenters asserted that the federal government may not preempt state laws that are not as strict as the privacy regulation because to do so would violate the separation of powers in the U.S. Constitution. One comment suggested that the rules raised a substantial constitutional issue because, as proposed, they permitted the Secretary to make determinations on preemption, which is a role reserved for the judiciary.
Response: We disagree. We note that this comment only pertains to determinations under section 1178(a)(2)(A); as discussed above, the rules below provide for no Secretarial determinations with respect to state privacy laws coming within section 1178(a)(2)(B). With respect to determinations under section 1178(a)(2)(A), however, the final rules, like the proposed rules, provide that at a state's request the Secretary may make certain determinations regarding the preemptive effect of the rules on a particular state law. As usually the case with any administrative decisions, these are subject to judicial review pursuant to the Administrative Procedure Act.