[Federal Register Volume 63, Number 96 (Tuesday, May 19, 1998)]
[Presidential Documents]
[Pages 27651-27654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-13552]



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Part IV





The President





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Executive Order 13083--Federalism



Executive Order 13084--Consultation and Coordination With Indian Tribal 
Governments
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  Federal Register / Vol. 63, No. 96 / Tuesday, May 19, 1998 / 
Presidential Documents  

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 Title 3--
 The President

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                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

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                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-

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                tions, and that imposes substantial direct compliance 
                costs on States and local governments, unless:
                    L  (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
                    L  (2) the agency, prior to the formal promulgation 
                of the regulation,

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

                    (Presidential Sig.)

                THE WHITE HOUSE,

                    May 14, 1998.

[FR Doc. 98-13552
Filed 5-19-98; 11:24 am]
Billing code 3195-01-P