Weekly Compilation of Presidential Documents
[Page 866-869]
Executive Order 13083--Federalism
May 14, 1998
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 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.
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(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 implications,
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.
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(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.
(e) This order shall be effective 90 days after the date
of this order.
William J. Clinton
[Filed with the Office of the Federal Register, 11:24 a.m.
May 18,
1998]
Note: This Executive order will be published in the Federal
Register on May 19.
From the 1998 Presidential Documents Online via GPO Access
[frwais.access.gpo.gov]
[DOCID:pd18my98_txt-28]
Monday, May 18, 1998
Pages 837-881
Week Ending Friday, May 15, 1998
The White House,
May 14, 1998.
