Archive

Intergovernmental Service Delivery

Recommendations and Actions

FSL02

Reduce Red Tape Through Regulatory and Mandate Relief

Background

The number of new requirements imposed on state and local governments have increased dramatically during the last decade. As of December 1992, at least 172 separate pieces of federal legislation were in force that imposed mandates on states and localities--many of which were partially or wholly unfunded. [Endnote 1] Facing a growing burden of complying with new unfunded requirements while experiencing severe budget constraints, state and local governments are demanding relief.

There is no more constant complaint by states and localities about any federal practice than the imposition of unfunded mandates on lower levels of government. In Reviving the American Dream, Alice Rivlin notes that: "The federal government's own fiscal weakness has not made it any less eager to tell states and localities what to do. Indeed, when its ability to make grants declined, the federal government turned increasingly to mandates as a way of controlling state and local activity without having to pay the bill."[Endnote 2] She goes on to say: "Mandates add to citizen confusion about who is in charge. When the federal government makes rules for state and local officials to carry out [whether or not they have the resources to do so], it is not clear to voters who should be blamed, either when the regulations are laxly enforced or when the cost of compliance is high."[Endnote 3]

The ability of federal departments and agencies to grant regulatory and mandate relief is more limited than many may appreciate. Authority to waive programmatic regulations is currently limited to research and demonstration projects under the auspices of the secretaries of Health and Human Services and Agriculture (and is statutorily granted in the Social Security and Food Stamps laws, respectively). While some latitude exists for other agency and department heads to modify, extend, and adjust executive regulations and compliance deadlines (e.g., in the Environmental Protection Agency), the majority of the most onerous federal mandates and regulations are statutorily imposed, affording little room for negotiation or flexibility.

Need For Change

As in the case of categorical grant programs, while each individual mandate and regulation may seem justified and reasonable, in combination they impose burdens on states and localities that make it less likely, rather than more likely, that overall federal goals can be met. The cumulative impact may force states and localities to adopt cost-ineffective strategies simply to achieve simultaneous compliance, or forgo the ability to make real progress toward critical benchmarks because they lack sufficient resources to simultaneously achieve all the goals set by the statutorily or administratively required deadlines.

Actions

1. Give cabinet secretaries and agency heads the flexibility to authorize selective relief from regulations or mandates. (3)

Legislation should be enacted to allow federal management flexibility over domestic service delivery policies.[Endnote 4] The Government Performance and Results Act addresses this issue in part by encouraging "management and flexibility waivers." However, greater latitude is needed. The execution of domestic public policy requires that managers have the freedom to manage, to weigh the issues involved when program requirements are in conflict, and to make operational decisions to best realize policy objectives in the dynamic world of implementation. Legislation to authorize greater executive discretion toward these ends will markedly enhance the ability of administrators to achieve desired national policy outcomes, because they will be able to significantly improve the efficiency of the intergovernmental service delivery systems.

It should be noted that special federal concern has been expressed about the extension of waivers to entitlement programs.[Endnote 5] These concerns should be given serious consideration.

2. Issue a regulatory executive order addressing the problems of unfunded federal mandates and regulatory relief. (2)

The new executive order should:

1. Establish that new federal policy will limit the use of unfunded mandates in legislative proposals and in regulations. An executive order that narrows the circumstances under which departments and agencies can impose new unfunded burdens on subordinate governments is required to set the tone for a new partnership and to signal the administration's commitment to reform in this area.

2. Direct federal agencies to review their existing regulations for the purpose of reducing the adverse impacts and removing barriers to effective service delivery.

3. Reemphasize that the Office of Management and Budget has the responsibility to assure that the adverse impact of major new regulations or legislation proposed by the executive branch be considered in advance of adoption.

4. Establish a collaborative process, including regular meetings with the director of the Office of Information and Regulatory Affairs (OIRA), involving federal, state, and local officials, to work together to evaluate the effects of major existing and proposed mandates and regulations, and to serve as a forum for developing solutions to identified problems (see FSL06: Strengthen the Intergovernmental Partnership).

Cross References to Other NPR Accompanying Reports

Streamline Management Controls, SMC08: Expand the Use of Waivers to Encourage Innovation.

Endnotes

1. "The Mandate Monitor," National Conference of State Legislatures, December 1992.

2. Rivlin, Alice, Reviving the American Dream (Washington, D.C.: The Brookings Institution, 1992), p. 107.

3. Ibid, p. 109.

4. In administering funds appropriated to an agency for domestic service delivery purposes, the agency head would be granted authority to waive any provision of a statute or regulation that she or he administers in connection with the obligation by the agency head or any use by the recipient of the funds (except for requirements relating to fair housing and nondiscrimination, the environment, and labor standards), upon finding that such a waiver would demonstrably enhance the accomplishment of national objectives, or demonstrably improve the efficiency of service delivery.

5. Comments on the draft report received from federal agencies.

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