912
Stevens, J., dissenting
Laboratories, Inc., 471 U. S., at 721; cf. Medtronic, Inc. v. Lohr, 518 U. S., at 512 (O'Connor, J., concurring in part and dissenting in part) ("It is not certain that an agency regulation determining the pre-emptive effect of any federal statute is entitled to deference"); Smiley v. Citibank (South Dakota), N. A., 517 U. S. 735, 743-744 (1996). Requiring the Secretary to put his pre-emptive position through formal notice-and-comment rulemaking—whether contemporaneously with the promulgation of the allegedly pre-emptive regulation or at any later time that the need for pre-emption becomes apparent 26—respects both the federalism and non-delegation principles that underlie the presumption against pre-emption in the regulatory context and the APA's requirement of new rulemaking when an agency substantially modifies its interpretation of a regulation. 5 U. S. C. § 551(5); Paralyzed Veterans of America v. D. C. Arena L. P., 117 F. 3d 579, 586 (CADC 1997); National Family Planning & Reproductive Health Assn. v. Sullivan, 979 F. 2d 227, 240 (CADC 1992).
* * *
Because neither the text of the statute nor the text of the regulation contains any indication of an intent to pre-empt
emptive regulations. Id., at 64; see also Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 700-705 (1984) (regulation); Fidelity Fed. Sav. & Loan Assn. v. De la Cuesta, 458 U. S., at 158-159 (regulation); Blum v. Bacon, 457 U. S. 132, 141-142 (1982) (Action Transmittal by Social Security Administration); Chicago & North Western Transp. Co. v. Kalo Brick & Tile Co., 450 U. S., at 327 (order of Interstate Commerce Commission); United States v. Shimer, 367 U. S. 374, 377 (1961) (regulation). I express no opinion on whether any deference would be appropriate in any of these situations, but merely observe that such situations are not presented here.
26 Hillsborough County v. Automated Medical Laboratories, Inc., 471 U. S., at 721 (noting that agency "can be expected to monitor, on a continuing basis, the effects on the federal program of local requirements" and to promulgate regulations pre-empting local law that imperils the goals of that program).
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