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Five agencies issued the bulk of the final rules published during this period—the Departments of Agriculture (USDA), Commerce (DOC), Health and Human Services (HHS), and Transportation (DOT); and the Environmental Protection Agency (EPA). As figure 2 shows, these agencies varied substantially in the degree to which they mentioned the executive order. For example, DOT mentioned the order in nearly 60 percent of its nearly 4,000 final rules, whereas EPA did not mention the order in any of the more than 1,000 rules it issued.

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However, mentioning the order in the preamble to a rule does not mean
the agency took any substantive action. The agencies usually just 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 fact, the preambles to only 5 of the 11,414 final rules that the agencies
issued between April 1996 and December 1998 indicated that a federalism
assessment had been done_2 in 1996 and 3 in 1997. Those five rules are
listed in table 1.


Pederna: Comment on 8. 1214-The Federal Accountability Act of 1999

Table 1: Preambles Indicated Four
Agencies issued Five Final Rules With
Federalism Assessments Between April
1996 and December 1993

Date final rula
Department or ons was published Title
Department of Health and Aug. 28, 1996 Regulations restricting the Salo and
Human Services

Distribution of Cigarettes and Smokeless
Tobacco to Protect Children and

Department of

Doc. 16, 1998 Aoadway Worker Protection
Department of Commerce Jan. 30, 1997 Florida Keys National Marine Sanctuary

Mar. 20, 1997 Hawaiian Islands Humpback Whale

Natonal Marine Sanctuary
Department of Labor Mar. 31, 1997 (Hazard Abatement Verification
Source: Federal Register and GAO analyah.

Many of the final rules that federal agencies issue are administrative or routine in nature, and therefore unlikely to have signifcant 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 and that involve or affect state and local governments would seem more likely to have federalism implications that would warrant preparation of an assessment.

However, that does not appear to have been the case. As figure 3 shows, of the 117 major final rules issued by covered agencies between April 1996 and December 1998, the preambles indicated that only I had a federalism assessment. The agencies had previously indicated that 37 of these rules would affect state and local governments, and the preambles to 21 of the rules indicated that they would preempt state and local laws in the event of a conflict. At least one of the four state and local government organizations that we consulted during the review said that federal agencies should have done assessments for most of these 117 major nules. In response, the agencies said that their rules did not have sufficient federalism implications to trigger the executive order's requirements.

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mentioning EQ. 12812

Total number of

Number of los

Number one who

Indore tom soment

Sources: Federal Reglater and GAO's major hulle database.

EPA Established High Threshold All three of the agencies we visited during our review (USDA, HHS, and for Federalism Assessments EPA) had some kind of written guidance on the executive order and had

designated an official or otce responsible for ensuring its implementation' However, the criteria the agencies used to determine whether federalism assessments were needed varied among the agencies. USDA's guidance did not establish any specific criteria, with agency attorneys making their own determinations regarding federalism implications in the context of each nilemaking. HHS' guidance listed four threshold criteria that could be used to determine whether a federalism assessment was required, but said an assessment must be prepared it an action would directly create significant effects on states even if the action was mandated by law or the department otherwise had no discretion.

and local government

The Agencies that we visited were thone with the on major rula that sta
representatives believed should have had a federation cement

Page 1

QAOT GGD-99-143

Federalent Comment on 3. 1214-The Federation Accountability Act of 1999

The criteria in EPA's guidance established a high threshold for what constitutes "sufficient" federalism implicatione perhaps explairdng why none of the agency's more than 1,900 final rules issued during the April 1998 to December 1998 time frame had a federalism assessment, For example, in order for an EPA rule to require an assessment, the agency's guidance said the rule must meet all four of the following criteria

• have an "institutional" effect on the states, not just a financial effect

(regardless of magnitude); • change significantly the relative roles of federal and state governments in a

particular program contest, lead to federal control over traditional state
responsibilities, or decrease the abllity of states to make policy decisions

with respect to their own functions,
• affect all or most of the states, and
• have a direct, causal effect on the states (i.e., not a side effect).

At least one of these criteria appeared to go beyond the executive order on
which it is based. Although EPA said a rule must affect all or most of the
states in order to have suficient federalism implications to warrant
preparation of an assessment, Executive Order 12612 defines "state" to
"refer to the States of the Unted States of America, individually or
collectively." (Emphasis added.) EPA's guidance also said that, even if all
four of these criteria are met, a rule would not require a federalism
assessment if a statute mandates the action or the means to carry it out are
implied by statute. However, EPA's actions appear to be allowable because
the executive order does not define what is meant by "suthcient"
federalism implications, leaving that determination up to the agencies.

OMB Has Taken Little Recent
Action to Ensure
Implementation of Executive .
Order 12612

OMB Mcials told us that they had taken little specific action to ensure implementation of the executive order, but said the order is considered along with other requirements as part of the regulatory review process under Executive Order 12866. They said that agencies had 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.

Commenting on the results of our review, the Acting Adeninistrator of OMB's Office of Information and Regulatory Affairs said it was not surprising that agencies were not focused on implementing Executive Order 12612 during the covered time period because they knew that the order was soon to be revised by Executive Order 13083. However, he also said that Executive Order 12612 had not been implemented to any significant extent by the Reagan Administration or its successors,"

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