Federalism: Implementation of Executive Order 12612 in the Rulemaking
Process (Statement/Record, 05/05/99, GAO/T-GGD-99-93).
Pursuant to a congressional request, GAO discussed the implementation of
Executive Order 12612 on federalism, focusing on: (1) how often the
preambles to covered agencies' final rules issued between April 1, 1996,
and December 31, 1998, mentioned Executive Order 12612 and how often
they indicated that the agencies had conducted federalism assessments
under the order; (2) what selected agencies have done to implement the
requirements of Executive Order 12612; and (3) what the Office of
Management and Budget (OMB) has done to oversee federal agencies'
implementation of Executive Order 12612 in the rulemaking process.
GAO noted that: (1) federal agencies covered by Executive Order 12612
mentioned the order in about 27 percent of the more than 11,000 final
rules they issued between April 1996 and December 1998; (2) the agencies
indicated, however, that they had prepared federalism assessments for
only five of these rules; (3) of the 117 major rules issued by these
agencies during this period, the preambles indicated that only 1 had a
federalism assessment; (4) state and local representatives that GAO
consulted said that certain federal agencies should have done
assessments for more of these major rules; however, the agencies said
that their rules did not have sufficient federalism implications to
trigger the executive order's requirements; (5) all three of the federal
agencies GAO visited had some kind of written guidance on the executive
order and had designated an official or office responsible for ensuring
its implementation; (6) however, the methods the agencies use to
determine whether federalism assessments are needed varied among the
agencies; and (7) OMB officials told GAO that they have taken no
specific actions to implement the executive order, but said the order is
considered along with other requirements as part of their regulatory
review process under Executive Order 12866.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: T-GGD-99-93
TITLE: Federalism: Implementation of Executive Order 12612 in the
Rulemaking Process
DATE: 05/05/99
SUBJECT: Federal regulations
Executive orders
Legislative procedures
Agency proceedings
Federal/state relations
Reporting requirements
Administrative law
IDENTIFIER: Federal Agency Major Rules
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FEDERALISM: Implementation of Executive Order 12612 in the
Rulemaking Process (GAO/T-GGD-99-93) FEDERALISM Implementation of
Executive Order 12612 in the Rulemaking Process
Statement for the Record of L. Nye Stevens Director, Federal
Management and Workforce Issues General Government Division
United States General Accounting Office
GAO Testimony Before the Committee on Governmental Affairs
U. S. Senate
Not to be Released Before 9: 00 a. m. EDT Wednesday May 5, 1999
GAO/T-GGD-99-93
GAO/T-GGD-99-93
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 1 GAO/T-GGD-99-93
Mr. Chairman and Members of the Committee: I am pleased to provide
some preliminary results from our ongoing review of the
implementation of Executive Order 12612 on Federalism, which was
issued by President Reagan in 1987. Although the executive order
applies to all covered agencies' policies that have federalism
implications, 1 you asked that we focus on agencies' compliance
with the order's requirements in the rulemaking process in recent
years. Specifically, we are examining (1) how often the preambles
to covered agencies' final rules issued between April 1, 1996, and
December 31, 1998, mentioned Executive Order 12612 and how often
they indicated that the agencies had conducted federalism
assessments under the order; (2) what selected agencies have done
to implement the requirements of Executive Order 12612; and (3)
what the Office of Management and Budget (OMB) has done to oversee
federal agencies' implementation of Executive Order 12612 in the
rulemaking process.
In brief, our preliminary results indicate that federal agencies
covered by Executive Order 12612 mentioned the order in about 27
percent of the more than 11,000 final rules they issued between
April 1996 and December 1998. The agencies indicated, however,
that they had prepared federalism assessments for only five of
these rules. Of the 117 major rules issued by these agencies
during this period, the preambles indicated that only 1 had a
federalism assessment. State and local representatives that we
consulted said that certain federal agencies should have done
assessments for more of these major rules; however, the agencies
said that their rules did not have sufficient federalism
implications to trigger the executive order's requirements. All
three of the agencies we visited had some kind of written guidance
on the executive order and had designated an official or office
responsible for ensuring its implementation. 2 However, the
methods the agencies use to determine whether federalism
assessments are needed varied among the agencies. OMB officials
told us that they have taken no specific actions to implement the
executive order, but said the order is considered along with other
requirements as part of their regulatory review process under
Executive Order 12866.
1 It is unclear whether Executive Order 12612 covers regulations
and other policies issued by independent regulatory agencies, such
as the Federal Communications Commission and the Securities and
Exchange Commission. Therefore, we are focusing our review on
executive departments and agencies that are not independent
regulatory agencies.
2 As discussed later in this statement, the agencies we visited
were those with the most major rules that state and local
government representatives believed should have had a federalism
assessment.
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 2 GAO/T-GGD-99-93
Before discussing our preliminary findings in detail, it will be
helpful to review the key features of Executive Order 12612 and
some recent initiatives related to federalism. The executive order
establishes a set of fundamental principles and criteria that
executive departments and agencies should use when formulating and
implementing policies that have federalism implications. For
example, the executive order says that federal agencies should
refrain to the maximum extent possible from establishing uniform,
national standards for programs with federalism implications and
that, when national standards are required, they should consult
with appropriate officials and organizations representing the
states in developing those standards. The order says that
regulations and other policies have federalism implications if
they have substantial direct effects on the States, on the
relationship between the national government and the States, or on
the distribution of power and responsibilities among the various
levels of government.
Executive Order 12612 also contains specific requirements for
agency implementation and governmentwide coordination and review.
For example, the head of each executive department and agency is
required to designate an official to be responsible for ensuring
the implementation of the order, and for determining which
proposed policies have sufficient federalism implications to
warrant preparation of a federalism assessment. If an assessment
is prepared, it must accompany any proposed or final rule
submitted to OMB for review under Executive Order 12866. 3 OMB, in
turn, is required to ensure that agencies' rulemaking actions are
consistent with the policies, criteria, and requirements in the
federalism executive order.
Although Executive Order 12612 has remained in effect since it was
issued in 1987, there have been several other initiatives that
were, at least in part, intended to improve the relationship
between federal rulemaking agencies and state and local
governments. For example, in 1993 President Clinton issued
Executive Order 12875 on Enhancing the Intergovernmental
Partnership, which requires that agencies develop effective
processes to permit state and local officials to provide
meaningful and timely input in the development of regulatory
proposals containing significant unfunded mandates. In 1995,
Congress enacted the Unfunded Mandates Reform Act (UMRA), part of
which requires agencies to take a number of analytical
3 Executive Order 12612 actually refers to rulemaking procedures
under Executive Order 12291, which was revoked and replaced by
Executive Order 12866 in 1993. Because only significant rules are
submitted to OMB for review under Executive Order 12866,
federalism assessments for nonsignificant rules are not required
to be submitted to OMB. For a description of the review process
under this order, see Regulatory Reform: Implementation of the
Regulatory Review Executive Order (GAO/ T- 96185, Sept. 25, 1996).
Background
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 3 GAO/T-GGD-99-93
and procedural steps during the rulemaking process for certain
rules that involve a mandate.
On May 14, 1998, President Clinton issued Executive Order 13083 on
Federalism, which was intended to replace both Executive Order
12612 and Executive Order 12875. The new executive order was to
take effect in mid- August 1998, and would have made a number of
changes to the specific requirements in Executive Order 12612. For
example, agencies would no longer have been required to designate
an official to ensure implementation of federalism requirements,
and would not have been required to prepare federalism assessments
for regulations and other policies with federalism implications.
However, the President suspended Executive Order 13083 before it
became effective in response to concerns raised by the National
Governors' Association and other interested parties. 4 Many of the
commentators objected to the new order because they believed it
expanded the federal government's authority to make national
policies and standards. There was also criticism that the new
order was issued without consulting affected state and local
government representatives. With the suspension of Executive Order
13083, Executive Order 12612 remains the primary presidential
directive to federal agencies on how they are to develop and
implement regulations that have federalism implications.
Executive Order 12612 does not require agencies to mention the
order in the preamble to their final rules or to note in those
preambles whether a federalism assessment was prepared. Therefore,
our review of the rule preambles does not show whether agencies
considered the executive order or whether the agencies prepared
federalism assessments. However, mentioning the executive order in
the preamble to a final rule is a clear indication that the agency
was aware of and considered its requirements in some way. Also, if
an agency prepared a federalism assessment for a final rule, the
agency is likely to describe the assessment in the preamble to the
rule.
To determine how often agencies have mentioned Executive Order
12612 and federalism assessments in the preambles to their rules,
we examined all final rules issued by the covered agencies between
April 1996 and December 1998, and all rules issued during this
period that were considered major rules under the congressional
review requirements in the Small Business Regulatory Enforcement
and Fairness Act (SBREFA). We selected this time period because it
allowed us to use our existing
4 Executive Order 13083 was suspended by Executive Order 13095 on
August 5, 1998. Few Rules Address
Executive Order 12612 Requirements
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 4 GAO/T-GGD-99-93
database of major rules issued since the passage of the SBREFA.
SBREFA defines a rule as major if the Administrator of OMB's
Office of Information and Regulatory Affairs concludes that the
rule is likely to result in (1) an annual effect on the economy of
$100 million or more; (2) an increase in costs or prices; or (3)
significant adverse effects on (among other things) competition,
employment, investment, or productivity.
To summarize the 3 years of data depicted in figure 1,
nonindependent regulatory agencies published 11,414 final rules in
the Federal Register between April 1996 and December 1998. The
agencies indicated in the preambles that they had conducted
federalism assessments for 5 of these 11,414 rules 2 in 1996 and 3
in 1997. In 3,016 rules (26 percent of the total), the agencies
stated that no federalism assessment was conducted because the
rules did not have federalism implications. Nearly all of these
statements were standard, boilerplate certifications with little
or no discussion of why the rule did not trigger the executive
order's requirements. In the remaining 8,393 rules (74 percent),
the agencies did not mention Executive Order 12612. Rule Preambles
Frequently
Did Not Mention the Order, and Reported Few Federalism Assessments
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 5 GAO/T-GGD-99-93
Note: The data for 1996 covers only those rules issued from April
1 to December 31. Source: Federal Register and GAO analysis.
Five departments and agencies issued nearly 80 percent of all
applicable final rules during this period the Departments of
Transportation (DOT), Agriculture (USDA), Commerce (DOC), and
Health and Human Services (HHS), and the Environmental Protection
Agency (EPA). As figure 2 shows, these agencies differed
substantially in the extent to which they mentioned Executive
Order 12612 in the preambles to their final rules. For example,
DOT mentioned the executive order in nearly 60 percent of its
final rules, whereas EPA did not mention the order in any of the
1,914 final rules it issued between April 1996 and December 1998.
Figure 1: Agencies Indicated Only Five Final Rules Issued Between
April 1996 and December 1998 Had Federalism Assessments
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 6 GAO/T-GGD-99-93
Source: Federal Register and GAO analysis.
Subsection 6( c) of Executive Order 12612 says that a federalism
assessment should (1) contain the designated official's
certification that the regulation or other policy has been
assessed in light of the principles, criteria, and requirements in
sections 2 through 5 of the order; (2) identify any provision or
element of the policy that is inconsistent with those principles,
criteria, and requirements; (3) identify the extent to which the
policy imposes additional costs or burdens on the states; and (4)
identify the extent to which the policy would affect the states'
ability to discharge traditional state governmental functions or
other aspects of state sovereignty. Of the five rules in which the
preambles indicated that a federalism assessment had been
prepared, all five contained either these four requirements or a
statement indicating that the federalism assessment (located
elsewhere in the rulemaking docket) addressed these four
Figure 2: Agencies Differed In Degree to Which They Mentioned
Executive Order 12612 in Final Rules Issued Between April 1996 and
December 1998
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 7 GAO/T-GGD-99-93
requirements. As table 1 shows, the five rules for which
federalism assessments were prepared were issued by four agencies
(DOC, DOT, HHS, and the Department of Labor) in either 1996 or
1997.
Department or agency Date final rule was published Title
Department of Health and Human Services
Aug. 28, 1996 Regulations Restricting the Sale and
Distribution of Cigarettes and Smokeless Tobacco to Protect
Children and Adolescents
Department of Transportation Dec. 16, 1996 Roadway Worker
Protection
Jan. 30, 1997 Florida Keys National Marine Sanctuary Department of
Commerce
Mar. 28, 1997 Hawaiian Islands Humpback Whale National Marine
Sanctuary
Department of Labor Mar. 31, 1997 (Hazard) Abatement Verification
Source: Federal Register and GAO analysis.
Many of the final rules that federal agencies issue are
administrative or routine in nature, and are therefore unlikely to
have significant federalism implications. As a result, it is not
particularly surprising that agencies would not prepare federalism
assessments for many of those rules. However, rules that are major
under SBREFA (e. g., those that have a $100 million impact on the
economy) and that involve or affect state and local governments
are more likely to have federalism implications that would warrant
preparation of an assessment.
Of the 11, 414 final rules that nonindependent agencies issued
between April 1996 and December 1998, 117 of them were identified
as major rules by the agencies and OMB. The agencies issuing the
rules indicated in the Unified Agenda of Federal Regulatory and
Deregulatory Actions 5 that 37 of them would affect state and
local governments. The agencies indicated in the preambles to 21
of the rules that the rules would take precedence in the event
they conflicted with state or local laws or regulations.
As figure 3 shows, federal agencies covered by Executive Order
12612 mentioned the executive order in the preambles to 30 of the
117 major
5 The Unified Agenda is issued twice each year by the Regulatory
Information Service Center, and is a compendium of executive and
independent agencies' regulatory activities that are being
developed, planned for the future, or completed.
Table 1: Four Agencies Issued Five Final Rules With Federalism
Assessments Between April 1996 and December 1998
Only One Federalism Assessment Reported for Major Rules
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 8 GAO/T-GGD-99-93
rules they issued between April 1996 and December 1998 (about 25
percent of the total). However, only one of these preambles
indicated that a federalism assessment had been prepared for the
rule an HHS rule issued in 1996 restricting the sale and
distribution of cigarettes and smokeless tobacco to protect
children and adolescents. The other 29 rule preambles that
mentioned the executive order stated that the rules did not have
sufficient federalism implications to warrant the preparation of a
federalism assessment. Most of these statements were boilerplate
certifications with little or no explanation of why the executive
order's requirements were not applicable to the rules.
Sources: Federal Register and GAO's major rule database.
Four agencies issued 87 (75 percent) of the 116 major rules issued
during this period without federalism assessments HHS (30 rules),
EPA (21 rules), USDA (18 rules), and the Department of the
Interior (18 rules). To determine how affected parties viewed the
agencies' decisions, we asked
Figure 3: Only One Major Rule Issued Between April 1996 and
December 1998 Had a Federalism Assessment
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 9 GAO/T-GGD-99-93
representatives from seven major state and local government
interest groups (known as the Big Seven) to review descriptions of
the 116 rules without federalism assessments and to indicate
whether they believed any of the rules should have had an
assessment. Four of these organizations provided us with comments
on at least some of the rules. 6 At least one of the four
organizations indicated that 79 of the 116 rules should have had a
federalism assessment. The agencies with the largest number of
rules that the four organizations considered in need of
assessments were HHS (26 rules), USDA (18 rules), and EPA (10
rules). Two or more of the organizations indicated that 30 of the
rules should have had an assessment.
We then contacted officials in each of these three agencies to
determine whether federalism assessments had been prepared for
these rules (but not mentioned in the preambles to the rules) or
why they believed that no assessment was needed. The agencies did
not indicate that any other assessments had been prepared, and
generally said that their rules did not have sufficient federalism
implications to trigger the executive order's requirements. In
some cases, the agencies indicated that they had substantively
complied with the executive order by taking other actions to
address intergovernmental concerns during the rulemaking process.
Federal departments and agencies are primarily responsible for
implementing Executive Order 12612. Section 6 of the executive
order delineates the agencies' responsibilities, requiring them to
(1) designate an official to be responsible for ensuring
implementation of the order, (2) have the designated official
determine which proposed regulations have sufficient federalism
implications to warrant the preparation of a federalism
assessment, and (3) send each federalism assessment to OMB as a
part of the regulatory review package sent pursuant to Executive
Order 12866. However, Executive Order 12612 provides the agencies
with broad discretion to determine how to meet these requirements.
Each of the three agencies we visited EPA, HHS, and USDA has some
kind of written guidance on how to implement Executive Order
12612. All three of the agencies' guidance documents identify a
designated official or office responsible for ensuring compliance
with the executive order.
6 The National Conference of State Legislatures, the Council of
State Governments, and the National Association of Counties
reviewed all of the rules. The National League of Cities reviewed
all of the rules except the EPA rules. The National Governors'
Association, the International City/ County Management
Association, and the U. S. Conference of Mayors did not provide
any assessments of the rules. Selected Agencies
Have Taken Some Actions to Implement Executive Order 12612
Agencies Have Written Guidance and Designated Officials or Offices
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 10 GAO/T-GGD-99-93
EPA issued its Guidelines for Implementing Executive Order 12612:
Federalism in June 1988. The guidelines identified the Assistant
Administrator of the Office of Policy, Planning, and Evaluation as
the designated EPA official for federalism. However, in 1992, the
EPA Administrator made the agency's General Counsel responsible
for carrying out the functions of the designated official. The
General Counsel was authorized to delegate the authority to the
Deputy General Counsel, who could redelegate it to the Associate
General Counsel level. EPA officials said that all agency
regulations are to be reviewed by the General Counsel before being
submitted to OMB and published in the Federal Register.
USDA's guidance on Regulatory Decisionmaking Requirements was last
updated in March 1997, and the requirements that are related to
Executive Order 12612 are part of that overall guidance. The
guidance indicates that the department's Office of the General
Counsel (OGC) is responsible for carrying out the responsibilities
of the designated official. For example, it says that OGC will [
r] eview regulations and notices of proposed rulemaking for
compliance with Executive Order 12612 and determine whether the
preparation of a federalism assessment by an agency is required.
All USDA regulations are to be reviewed centrally by the
department's OGC before being submitted to OMB and published in
the Federal Register.
In March 1988, HHS's Assistant Secretary for Planning and
Evaluation (ASPE) issued a memo on Compliance with Executive
Orders on The Family and Federalism. The memo indicated that the
Secretary had assigned the ASPE lead responsibility for guidance,
compliance, and technical assistance related to the executive
order. HHS officials said that, with the exception of certain
delegated regulations issued by the Food and Drug Administration
(FDA), the ASPE is responsible for reviewing and clearing all
departmental regulations. One facet of the ASPE's review is to
determine whether the rules comply with Executive Order 12612.
Many nonmajor FDA regulations (as determined by FDA) are issued
directly by the Commissioner without formal departmental review
and clearance. For these regulations, HHS officials said that the
FDA Commissioner exercises the responsibilities of the designated
official under the executive order.
Section 6 of Executive Order 12612 says that the designated
official shall determine which proposed policies have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment. Two of the three agencies we visited established
explicit criteria in their written guidance on Executive Order
12612 to determine whether a rule has significant Criteria for
Determining the
Need for Federalism Assessments Vary Across the Three Agencies
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 11 GAO/T-GGD-99-93
federalism implications. At least one of the agencies' criteria
seems to establish a high threshold for preparing an assessment.
USDA's written guidance on Executive Order 12612 does not
establish any specific criteria that the department's OGC should
use to determine whether a particular rule or other policy has
sufficient federalism implications to warrant the preparation of a
federalism assessment. Neither has USDA's OGC established any
written criteria to guide these determinations. USDA officials
said that OGC attorneys make their own determinations regarding
federalism implications in the context of each rulemaking action.
The HHS guidance on the executive order lists threshold criteria
that can be used to determine whether a rule's federalism effects
are significant and thus require a federalism assessment. The
guidance indicates that a rule should be considered to have
significant federalism implications if it (1) has a direct causal
effect on the states; (2) primarily relates to the structure and
role of states (e. g., not just a reduction in funding of grant
programs); (3) has effects within a reasonably foreseeable time
frame (e. g., within the next 5 years); and (4) has a significant
incremental effect (e. g., requiring states to do something that
they are not already doing). The guidance also says that an
assessment must be prepared if an action will directly create
significant effects on states even if the action is mandated by
law or the department otherwise has no discretion. Finally, it
says that rules and other policies with either a positive or
negative significant effect on the states require a federalism
assessment.
The criteria in EPA's guidance are similar to, but also somewhat
different from, the HHS criteria. For example, the guidance
document says that, even if an action might have substantial
federalism effects, it will not require a federalism assessment if
a statute mandates the action or the means to carry it out are
implied by statute. The EPA guidance also establishes the
following four criteria, all of which must be met for the agency
to determine that a rule has substantial federalism effects and
therefore requires a federalism assessment:
The rule must have an institutional effect on the states, not
just a financial effect. The guidance says that the fact [ t] hat
an action has a financial effect on States, regardless of
magnitude, is not sufficient in itself to trigger a federalism
assessment. It also says a rule must affect the roles and
responsibilities of state government to have federalism
implications.
The rule must change significantly the relative roles of Federal
and State governments in a particular program context, lead to
Federal control over
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 12 GAO/T-GGD-99-93
traditional State responsibilities, or decrease the ability of
States to make policy decisions with respect to their own
functions in order to have a substantial effect.
The rule must affect all or most states, not simply one state or
a small cluster of States.
The rule must have a direct, causal effect on the states. If a
rule creates federalism effects as a side effect, the guidance
says the rule would not trigger the requirement for a federalism
assessment.
These criteria seem to establish a high threshold for what
constitutes sufficient federalism implications to require an
assessment. For example, the executive order defines state to
refer to the States of the United States of America, individually
or collectively. (Emphasis added.) EPA's guidance, on the other
hand, indicates that federalism assessment should be prepared only
if a regulation or other policy affects all or most states.
However, EPA's actions appear to be allowable because the
executive order does not define what is meant by sufficient
federalism implications, leaving that determination up to the
agencies.
Section 7 of Executive Order 12612 indicates that, in implementing
Executive Order 12866, OMB should, to the extent permitted by law,
take action to ensure that the policies of Executive departments
and agencies are consistent with the principles, criteria, and
requirements of the federalism executive order. As noted
previously, the order requires agencies to submit federalism
assessments (if they were prepared) along with any rules being
submitted to OMB for review.
OMB officials told us that reviews of agencies' actions in the
federalism area have been part of the standard regulatory reviews
conducted by OMB staff pursuant to Executive Order 12866. They
said that agencies have rarely submitted separate federalism
assessments to OMB but have addressed federalism considerations,
when appropriate, as a part of the cost- benefit analysis and
other analytical requirements. These officials also noted that
there were few federalism assessments filed with OMB during the
Reagan and Bush administrations.
According to agency officials, OMB does not now have, nor did it
previously have, a separate oversight program for examining
agencies' adherence to the federalism executive order. OMB has not
issued any guidance to the agencies on the implementation of
Executive Order 12612. OMB does not maintain a list of the
designated agency officials who are responsible for implementation
within their agencies. In fact, the White OMB Has Taken Little
Specific Action to Ensure Implementation of Executive Order 12612
Statement Federalism: Implementation of Executive Order 12612 in
the Rulemaking Process
Page 13 GAO/T-GGD-99-93
House web site indicates that Executive Order 13083 (the suspended
Clinton order), not 12612, is the applicable executive order on
federalism. 7
One OMB official told us that Executive Order 12612, Executive
Order 12866, Executive Order 12875, and UMRA all substantively
address the same idea regarding federalism. They all require that,
if a proposed rule is likely to have a significant impact on other
levels of government, the impact should be considered in analyzing
the costs and benefits of the rule and the agency should consult
with appropriate officials at the state and local level.
Executive Order 12612 gives agencies substantial discretion to
determine which regulations and other policies have sufficient
federalism implications to warrant preparation of a federalism
assessment. Using that discretion, the agencies have prepared
federalism assessments for very few rules. One of the agencies we
visited had no written criteria to make those determinations.
Although the other two agencies had written criteria, they had
prepared only one federalism assessment and had mentioned the
executive order in only 10 out of nearly 3,000 rules. The two
agencies' criteria were also inconsistent regarding whether
statutorily mandated regulations required a federalism assessment.
Also, other than including federalism as part of its regulatory
reviews, OMB has taken no other specific actions to carry out its
responsibility to ensure that agencies' regulations and other
policies are consistent with the executive order.
The fact that agencies have prepared federalism assessments for
only 5 of the more than 11,000 final rules issued in recent years
suggests that the agencies are not implementing the order as
vigorously as they could. We will be exploring the implications of
this situation as we complete the work on this issue that you have
requested of us.
7 The OMB web site does not list executive orders. The White House
web site lists only the executive orders issued during the Clinton
Administration. It also contains the executive order that
suspended Executive Order 13083, but to find it one must enter
either the number of the order or the date on which it was issued.
Conclusions
Page 14 GAO/T-GGD-99-93
Page 15 GAO/T-GGD-99-93
Page 16 GAO/T-GGD-99-93
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