Process for Obtaining Waivers from Regulations

Establish a process for obtaining waivers from federal regulations and
identify the regulations for which this process applies. (1)

The President should direct each agency to establish and publicize an
open process for obtaining waivers from that agency's regulations.  The
process should address the following considerations:

--- Waiver petitions, so as not to be frivolous, must be submitted by
heads of local or state governments (who may seek the counsel of their
senators or representatives) or heads of federal departments/agencies.
Waiver petitions from private entities or individuals would be
prohibited.

--- Initial waiver decisions should be made in 60 days, but if no
decision is made, the waiver will be deemed to have been granted unless
the petitioned agency formally notifies the petitioner that it has
extended the period of consideration for a maximum of another 30 days.
If no explicit decision is made in that time, the waiver would be
automatically approved.

--- Input must be sought from the office with line responsibility for
issuing or implementing the regulation for which a waiver is sought,
perhaps by having that office make the initial decision on the waiver.
Where state or local agencies are affected, the appropriate senators or
representatives should be consulted by the petitioned federal agency.

--- A right must be included for the petitioner to appeal a denial to an
agency or department office not having line responsibility for the
issuance or implementation of the regulation at issue. (This might be a
waiver appeals board, the general counsel's office, an office of program
design, etc.) This is necessary to ensure that staff heavily invested in
the existing regulatory structure do not inappropriately block
innovative programs. The duration of the appeal should also be limited
to 60 days with no provisions for extension of the consideration period.

--- Decisions by the independent waiver appeals board can be appealed to
the head of the agency by either the petitioner or the responsible
office. This period should be strictly limited to 30 days.

--- An office designated by the President could serve as ombudsman from
whom petitioners may seek help when a waiver decision is appealed to the
Secretary or agency head. A petitioner should be able to present its
position to this waiver office; this office would advise the
Secretary/agency head as to whether it thinks the waiver should be
granted or denied.

--- All documents submitted by the petitioners to either the agency or
the waiver office must be made available to the public. Final decisions
must be announced promptly in the Federal Register.

--- Initial waiver decisions need only signature approval to be granted,
while denials would have to be supported by written explanations. All
government officials who are formally a party to the ultimate decision
should be clearly identified for the record.

Waiver authority should not be sought or instituted for all programs.
Waivers should further the statutory intent, be limited in duration and
scope, and have measurable results. Waiver authority is appropriate when
the petitioner needs a waiver to innovate, such as a state developing a
new welfare program. It is also appropriate when changes in
circumstances outpace changes in rules. It is inappropriate when
agencies are requiring public or private entities to act for health,
safety, or environmental reasons. For example, states should not have
any additional authority to seek waivers of Clean Air Act requirements,
either for themselves or for private entities. Such waivers would not
further the purposes of the legislation.

Agencies must designate those existing regulations or programs for which
the waiver authority will apply. The waiver process should be instituted
immediately for those regulations for which the agency has the authority
to do so. Where agencies need a statutory change to institute the waiver
process, the Administration should seek such legislation. As new
legislative requirements are proposed, explicit provisions for waiver
authority should be considered. The current presumption that legislative
requirements cannot be waived should be reversed so that agency heads
have authority to waive requirements unless legislation explicitly
prohibits waivers. The Administration should seek legislation to
accomplish such reversals.

Each agency should be responsible for maintaining a data base tracking
waivers requested and granted by that agency, including the expected
duration and results of each waiver. When a waiver demonstrates its
value, or when significant patterns and trends detected by the agencies
suggest that regulations or laws create pervasive problems, the agency
should revise or abolish the requirement. For example, 48 state agencies
have waivers from the Medicaid program allowing them to provide
community-based services as an alternative to nursing home care, which
is the service routinely covered by Medicaid.(8) With such a
preponderance of states seeking waivers, the basic policy clearly
demands attention.