Presidential Documents

27651

Federal Register

Vol. 63, No. 96

Tuesday, May 19, 1998

Title 3—

The President

Executive Order 13083 of May 14, 1998

Federalism

By the authority vested in me as President by the Constitution and the

laws of the United States of America, and in order to guarantee the division

of governmental responsibilities, embodied in the Constitution, between the

Federal Government and the States that was intended by the Framers and

application of those principles by the Executive departments and agencies

in the formulation and implementation of policies, it is hereby ordered

as follows:

Section 1. Definitions. For purposes of this order:

(a) ‘‘State’’ or ‘‘States’’ refer to the States of the United States of America,

individually or collectively, and, where relevant, to State governments, including units of local government and other political subdivisions established

by the States.

(b) ‘‘Policies that have federalism implications’’ refers to Federal regulations, proposed legislation, and other policy statements or actions that have

substantial direct effects on the States or on the relationship, or the distribution of power and responsibilities, between the Federal Government and

the States.

(c) ‘‘Agency’’ means any authority of the United States that is an ‘‘agency’’

under 44 U.S.C. 3502(1), other than those considered to be independent

regulatory agencies, as defined in 44 U.S.C. 3502(5).

Sec. 2. Fundamental Federalism Principles. In formulating and implementing

policies that have federalism implications, agencies shall be guided by the

following fundamental federalism principles:

(a) The structure of government established by the Constitution is premised

upon a system of checks and balances.

(b) The Constitution created a Federal Government of supreme, but limited,

powers. The sovereign powers not granted to the Federal Government are

reserved to the people or to the States, unless prohibited to the States

by the Constitution.

(c) Federalism reflects the principle that dividing power between the

Federal Government and the States serves to protect individual liberty. Preserving State authority provides an essential balance to the power of the

Federal Government, while preserving the supremacy of Federal law provides

an essential balance to the power of the States.

(d) The people of the States are at liberty, subject only to the limitations

in the Constitution itself or in Federal law, to define the moral, political,

and legal character of their lives.

(e) Our constitutional system encourages a healthy diversity in the public

policies adopted by the people of the several States according to their

own conditions, needs, and desires. States and local governments are often

uniquely situated to discern the sentiments of the people and to govern

accordingly.

(f) Effective public policy is often achieved when there is competition

among the several States in the fashioning of different approaches to public

policy issues. The search for enlightened public policy is often furthered

when individual States and local governments are free to experiment with

a variety of approaches to public issues. Uniform, national approaches to
27652 Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Presidential Documents

public policy problems can inhibit the creation of effective solutions to

those problems.

(g) Policies of the Federal Government should recognize the responsibility

of—and should encourage opportunities for—States, local governments, private associations, neighborhoods, families, and individuals to achieve personal, social, environmental, and economic objectives through cooperative

effort.

Sec. 3. Federalism Policymaking Criteria. In addition to adhering to the

fundamental federalism principles set forth in section 2 of this order, agencies

shall adhere, to the extent permitted by law, to the following criteria when

formulating and implementing policies that have federalism implications:

(a) There should be strict adherence to constitutional principles. Agencies

should closely examine the constitutional and statutory authority supporting

any Federal action that would limit the policymaking discretion of States

and local governments, and should carefully assess the necessity for such

action.

(b) Agencies may limit the policymaking discretion of States and local

governments only after determining that there is constitutional and legal

authority for the action.

(c) With respect to Federal statutes and regulations administered by States

and local governments, the Federal Government should grant States and

local governments the maximum administrative discretion possible. Any

Federal oversight of such State and local administration should not unnecessarily intrude on State and local discretion.

(d) It is important to recognize the distinction between matters of national

or multi-state scope (which may justify Federal action) and matters that

are merely common to the States (which may not justify Federal action

because individual States, acting individually or together, may effectively

deal with them). Matters of national or multi-state scope that justify Federal

action may arise in a variety of circumstances, including:

(1) When the matter to be addressed by Federal action occurs interstate

as opposed to being contained within one State’s boundaries.

(2) When the source of the matter to be addressed occurs in a State

different from the State (or States) where a significant amount of the harm

occurs.

(3) When there is a need for uniform national standards.

(4) When decentralization increases the costs of government thus imposing

additional burdens on the taxpayer.

(5) When States have not adequately protected individual rights and liberties.

(6) When States would be reluctant to impose necessary regulations because

of fears that regulated business activity will relocate to other States.

(7) When placing regulatory authority at the State or local level would

undermine regulatory goals because high costs or demands for specialized

expertise will effectively place the regulatory matter beyond the resources

of State authorities.

(8) When the matter relates to Federally owned or managed property

or natural resources, trust obligations, or international obligations.

(9) When the matter to be regulated significantly or uniquely affects Indian

tribal governments.

Sec. 4. Consultation. (a) Each agency shall have an effective process to

permit elected officials and other representatives of State and local governments to provide meaningful and timely input in the development of regulatory policies that have federalism implications.

(b) To the extent practicable and permitted by law, no agency shall promulgate any regulation that is not required by statute, that has federalism implica-
Federal Register / Vol. 63, No. 96 /Tuesday, May 19, 1998 / Presidential Documents 27653

tions, and that imposes substantial direct compliance costs on States and

local governments, unless:

(1) funds necessary to pay the direct costs incurred by the State or

local government in complying with the regulation are provided by the

Federal Government; or

(2) the agency, prior to the formal promulgation of the regulation,

(A) in a separately identified portion of the preamble to the regulation

as it is to be issued in the Federal Register, provides to the Director

of the Office of Management and Budget a description of the extent

of the agency’s prior consultation with representatives of affected States

and local governments, a summary of the nature of their concerns,

and the agency’s position supporting the need to issue the regulation;

and

(B) makes available to the Director of the Office of Management and

Budget any written communications submitted to the agency by States

or local governments.

Sec. 5. Increasing Flexibility for State and Local Waivers. (a) Agencies shall

review the processes under which States and local governments apply for

waivers of statutory and regulatory requirements and take appropriate steps

to streamline those processes.

(b) Each agency shall, to the extent practicable and permitted by law,

consider any application by a State or local government for a waiver of

statutory or regulatory requirements in connection with any program administered by that agency with a general view toward increasing opportunities

for utilizing flexible policy approaches at the State or local level in cases

in which the proposed waiver is consistent with applicable Federal policy

objectives and is otherwise appropriate.

(c) Each agency shall, to the extent practicable and permitted by law,

render a decision upon a complete application for a waiver within 120

days of receipt of such application by the agency. If the application for

a waiver is not granted, the agency shall provide the applicant with timely

written notice of the decision and the reasons therefor.

(d) This section applies only to statutory or regulatory requirements that

are discretionary and subject to waiver by the agency.

Sec. 6. Independent Agencies. Independent regulatory agencies are encouraged to comply with the provisions of this order.

Sec. 7. General Provisions. (a) This order is intended only to improve the

internal management of the executive branch and is not intended to, and

does not, create any right or benefit, substantive or procedural, enforceable

at law or equity by a party against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

(b) This order shall supplement but not supersede the requirements contained in Executive Order 12866 (‘‘Regulatory Planning and Review’’), Executive Order 12988 (‘‘Civil Justice Reform’’), and OMB Circular A–19.

(c) Executive Order 12612 of October 26, 1987, and Executive Order 12875

of October 26, 1993, are revoked.

(d) The consultation and waiver provisions in sections 4 and 5 of this

order shall complement the Executive order entitled, ‘‘Consultation and

Coordination with Indian Tribal Governments,’’ being issued on this day.
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[FR Doc. 98–13552

THE WHITE HOUSE,

May 14, 1998.

(e) This order shall be effective 90 days after the date of this order.

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Filed 5–19–98; 11:24 am]

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