This is the accessible text file for GAO report number GAO-02-495 
entitled 'Regulatory Programs: Balancing Federal and State 
Responsibilities for Standard Setting and Implementation' which was 
released on March 20, 2002. 

This text file was formatted by the U.S. General Accounting Office 
(GAO) to be accessible to users with visual impairments, as part of a 
longer term project to improve GAO products' accessibility. Every 
attempt has been made to maintain the structural and data integrity of 
the original printed product. Accessibility features, such as text 
descriptions of tables, consecutively numbered footnotes placed at the 
end of the file, and the text of agency comment letters, are provided 
but may not exactly duplicate the presentation or format of the 
printed version. The portable document format (PDF) file is an exact 
electronic replica of the printed version. We welcome your feedback. 
Please E-mail your comments regarding the contents or accessibility 
features of this document to Webmaster@gao.gov. 

This is a work of the U.S. government and is not subject to copyright 
protection in the United States. It may be reproduced and distributed 
in its entirety without further permission from GAO. Because this work 
may contain copyrighted images or other material, permission from the 
copyright holder may be necessary if you wish to reproduce this 
material separately. 

United States General Accounting Office: 
GAO: 

Report to the Chairman, Committee on Environment and Public Works, 
U.S. Senate: 

March 2002: 

Regulatory Programs: 

Balancing Federal and State Responsibilities for Standard Setting and 
Implementation: 

GAO-02-495: 

Contents: 

Letter: 

Results in Brief: 

Background: 

Scope and Methodology: 

Standard-Setting Mechanisms, Implementation Roles Link States to
National Regulatory Objectives: 

Minimum Federal Standards Feature Shared Regulation and
Implementation: 

Experience with These Mechanisms Suggests Considerations for
Future Programs: 

Concluding Observations: 

Tables: 

Table 1: Programs Reviewed for This Report: 

Table 2: Standard-Setting Mechanisms and Implementation
Patterns: 

Table 3: Division of Implementation Responsibility in Minimum
Standards Programs: 

Table 4: Standard-Setting Mechanisms and Federal-State Balance
Factors: 

Figures: 

Figure 1: Defining the National Objective and Examining Background 
Questions: 

Figure 2: Selecting a Standard-Setting Mechanism: 

Figure 3: Examining Implementation Options: 

[End of section] 

United States General Accounting Office: 
Washington, DC 20548: 

March 20, 2002: 

The Honorable James M. Jeffords: 
Chairman: 
Committee on Environment and Public Works: 
United States Senate: 

Dear Mr. Chairman: 

In the American system of government there are many policy areas in 
which both federal and state governments exercise regulatory 
authority. In enacting new legislation in these shared areas, the 
Congress faces a key challenge: how to provide federal protections, 
guarantees, or benefits while preserving an appropriate balance 
between federal and state regulatory authority and responsibility.
As you noted in your request letter, there is little information 
available to guide the Congress in selecting or defining an approach 
to this challenge. Accordingly, you requested that GAO undertake a 
study of programs in which the federal government shares regulatory 
functions with the states. Our objectives were to (1) identify major 
mechanisms and options for achieving national regulatory purposes 
within the U.S. intergovernmental system and (2) identify advantages, 
issues, and limitations associated with each mechanism and option and 
determine how these considerations might guide the choice among them. 

Results in Brief: 

State efforts can be directed toward federal or nationally shared 
regulatory objectives through a variety of arrangements, each of which 
reflects (1) a mechanism for defining and issuing regulations or 
standards and (2) assignment of responsibility for implementing or 
enforcing the regulations or standards. Regulatory and standard-
setting mechanisms with the potential for achieving nationwide 
coverage include: 

* fixed federal standards that preempt all state regulatory action in 
the subject area covered; 

* minimum federal standards that preempt less stringent state laws but 
permit states to establish standards more stringent than the federal; 

* inclusion of federal regulatory provisions in grants or other forms 
of assistance; 

* cooperative programs in which voluntary national standards are 
formulated by federal and state officials working together; and; 

* widespread state adoption of voluntary standards formulated by quasi-
official entities. 

The first two of these mechanisms involve preemption. The other three 
represent alternative approaches. Each mechanism represents a 
different combination of federal and state regulatory authority.
The mechanisms also offer different options with respect to 
implementation or enforcement. Fixed and minimum federal standards 
permit three patterns of implementation: (1) direct implementation by 
a federal agency, (2) implementation by the states with some degree of 
federal oversight, and (3) state implementation in some states and 
direct federal implementation in others. The remaining three 
mechanisms—regulatory provisions in grants or other forms of support, 
cooperatively set standards, and state adoption of standards set by 
quasi-official entities—rely primarily on direct implementation by the 
state under its own authority; they vary in the degree of federal 
oversight they can accommodate. 

Each standard-setting mechanism offers different advantages and 
limitations, that reflect some of the key considerations of federal-
state balance in the context of a given national regulatory objective. 
Among these considerations are: 

* Uniformity: Does this mechanism provide uniform standards and
nationwide coverage where essential to achieve the objective? 

* Flexibility: Does the mechanism allow for flexibility—in regulatory
content or implementation—where appropriate to the objective? 

* Capacity: Does the mechanism assign responsibility appropriate to 
the capacity of each level of government to do the job at hand, taking 
into account breadth of jurisdiction, enforcement powers, resources, 
and location? 

* Accountability: Can accountability to the federal government be 
incorporated into this mechanism where deemed necessary to achieving 
the objective? 

The mechanisms vary considerably in terms of these factors. For 
example, fixed federal standards apply to all states and can enlist 
state capacity for implementation but offer relatively little 
flexibility. Cooperatively set standards, which generally are not 
binding on states, offer flexibility but not uniform coverage or 
accountability to the federal government. (See table 4.) 

Shared implementation brings a number of operational challenges. These 
include finding the appropriate level of federal oversight, allocating 
costs between the federal government and the states, potentially 
increasing the vulnerability of federal agencies to sudden increases 
in responsibilities and costs, handling variation in implementation 
from state to state, and adjusting to the new federal-state balance.
This report addresses these federal-state balance factors and 
operational challenges by developing guiding questions that 
policymakers might use to select a standard-setting mechanism and 
implementation arrangement appropriate to a given federal regulatory 
objective and set of conditions. This guidance is summarized in 
decision flow diagrams, figures 1-3. 

The United States Constitution established a union of states that 
provided for national and state government and gave each its own 
authority and sphere of power. However, it also allows for these 
spheres to overlap and thus creates areas of concurrent power in which 
either level of government or both may regulate. Examples include the 
power to regulate commerce and the power to tax. Within these areas 
there may be situations in which laws conflict. To resolve these 
conflicts, the Constitution's Supremacy Clause provides that federal 
law is "the Supreme Law of the Land," thereby preempting state law. 
[Footnote 1] Preemption occurs when the Congress enacts a statute or a 
federal agency adopts a regulation in an area in which state 
legislatures have acted or have the authority to act. The Congress's 
constitutional power to regulate interstate commerce has proven the 
source of many preemptive statutes.[Footnote 2] 

The balance between federal and state government in areas of 
concurrent powers has been continuously debated and has shifted as 
political, social, and economic conditions have changed over the 
years.[Footnote 3] Within the 20th century, for example: 

* The Great Depression of the 1930s led to an expanded federal role in 
domestic affairs to deal with social and economic problems that states 
could not respond to effectively on their own. 

* The Great Society programs of the 1960s brought further expansion of 
the federal role in an effort to achieve socially desirable outcomes 
and to the use of state and local governments as intermediaries to 
implement national policies in areas that had previously been the 
purview of state or local governments or the private sector. 

* The 1980s brought a shift of funds, authority, and responsibility to 
the states through block grants, such as the Social Services Block 
Grant, which allowed greater state and local autonomy and flexibility 
in fashioning local strategies to address federal objectives. 

* The trend toward state flexibility continued in the 1990s, 
accompanied by concern about "unfunded mandates" (federal regulations 
that impose new duties on states—duties that require state 
expenditures).[Footnote 4] At the same time, the emergence of the 
Internet and the increasingly national and international nature of 
commerce created pressures for federal regulation. 

Questions of federal and state responsibility in areas of common 
regulatory concern continue to spark debate in the twenty-first 
century, as evidenced by the examination of state-regulated voting 
procedures following the 2000 presidential election[Footnote 5] and of 
federal and state homeland security responsibilities following the 
terrorist attacks of 2001.[Footnote 6] Such questions are also likely 
to arise during reauthorization debates on existing programs. 

Scope and Methodology: 

To identify mechanisms for focusing state efforts toward national 
regulatory objectives, we reviewed the literature on federalism, 
intergovernmental relations, preemption, and regulatory programs in a 
broad range of policy areas. We then examined programs and approaches 
that combined federal with state regulation or implementation. Our 
review included both programs that involved preemption and programs 
that used other approaches to enlist state effort in support of 
federal or national regulatory objectives. 

Five major mechanisms emerged from our review. We classified programs 
in terms of these mechanisms and selected two or more programs 
representing each mechanism for more detailed examination and to serve 
as examples. We selected examples from a broad range of regulatory 
agencies with the aim of including major programs as well as a variety 
of approaches. (The programs we selected are summarized in table 1). 
For the mechanism concerning grants, we looked at grant programs but 
did not examine other forms of federal support. Our study focused on 
the mechanisms and did not review the content or strategic approaches 
of the regulations and standards involved or the effectiveness of the 
programs as implemented. 

To obtain descriptive material concerning each of these programs we 
reviewed authorizing statutes, regulations, agency documents, and 
documents concerning quasi-official standard-setting bodies. We also 
examined reports from program studies conducted by the Congressional 
Research Service, GAO, inspectors general, and other sources. We did 
not conduct new analyses of these programs. Thus, our findings are 
based on available information. 

Table 1: Programs Reviewed for This Report: 

Standard setting mechanism: Federal fixed standards; 
Program reviewed: Employee Retirement Income Security Act (ERISA) 
Title I: regulation of fiduciary, reporting, and disclosure practices 
in privately sponsored employee benefit plans; 
Federal agency involved in program implementation: Department of Labor 
(DOL), Pension and Welfare Benefits Administration; 

Standard setting mechanism: Federal fixed standards; 
Program reviewed: Hazardous Materials Transportation: regulations 
governing transportation of hazardous materials by motor vehicle; 
Federal agency involved in program implementation: Department of 
Transportation (DOT), Motor Carrier Safety Administration (MCSA). 

Standard setting mechanism: Federal minimum standards; 
Program reviewed: Clean Air Act: minimum standards for air quality; 
Federal agency involved in program implementation: Environmental 
Protection Agency (EPA), Office of Air and Radiation DOT, 
MCSA. 	 

Standard setting mechanism: Federal minimum standards; 
Program reviewed: Motor Carrier Safety: minimum safety standards 
covering commercial vehicles and drivers; 
Federal agency involved in program implementation: DOT, MCSA.  

Standard setting mechanism: Federal minimum standards; 
Program reviewed: Health Insurance Portability and Accountability Act 
(HIPAA): minimum standards concerning portability and renewability of 
health plan coverage; 
Federal agency involved in program implementation: Department of 
Health and Human Services (HHS), Centers for Medicare and Medicaid 
Services (CMS). 

Standard setting mechanism: Federal minimum standards; 
Program reviewed: Meat and Poultry Inspection: food safety standards 
for plants that process meat and poultry; 
Federal agency involved in program implementation: Department of 
Agriculture, Food Safety and Inspection Service (FSIS). 

Standard setting mechanism: Federal minimum standards; 
Program reviewed: Occupational Safety and Health: minimum standards 
for workplace safety; 
Federal agency involved in program implementation: DOL, Occupational 
Safety and Health Administration (OSHA). 

Standard setting mechanism: Federal minimum standards; 
Program reviewed: Safe Drinking Water: minimum standards for public 
drinking water systems; 
Federal agency involved in program implementation: EPA, Office of 
Water. 

Standard setting mechanism: Conditions of grant program; 
Program reviewed: Synar Amendment to Substance Abuse Prevention and 
Treatment (SAPT) grant provisions: requires states to have and enforce 
a law prohibiting the sale or distribution of tobacco products to 
persons under 18; 
Federal agency involved in program implementation: HHS, Substance 
Abuse and Mental Health Services Administration (SAMHSA); 

Standard setting mechanism: Conditions of grant program; 	
Program reviewed: Temporary Assistance to Needy Families (TANF) grant 
program: sets conditions on state programs that receive federal funds; 
Federal agency involved in program implementation: HHS, Administration 
for Children and Families (ACF). 

Standard setting mechanism: Conditions of grant program; 
Program reviewed: Title I, Education of the Disadvantaged grant 
program: requires states to set and enforce minimum standards for 
content and performance in education; 
Federal agency involved in program implementation: Department of 
Education, Office of Elementary and Secondary Education. 

Standard setting mechanism: Federal/state cooperative standards; 
Retail Food Protection: guidelines for safe handling of food in retail 
establishments such as grocery stores and restaurants; 
Federal agency involved in program implementation: Food and Drug 
Administration (FDA), Center for Food Safety and Applied Nutrition. 

Standard setting mechanism: Federal/state cooperative standards; 
Program reviewed: National Shellfish Sanitation: voluntary standards 
for safe production and processing of shellfish; 
Federal agency involved in program implementation: FDA, Center for 
Food Safety and Applied Nutrition, Federal/State Programs.
		
Standard setting mechanism: State adoption of externally set standards; 
Program reviewed: National Conference on Uniform State Laws: uniform 
and model state acts in subjects that benefit from a common approach; 	
Federal agency involved in program implementation: None. Members are 
state-appointed and organization receives funds from states. 

Standard setting mechanism: State adoption of externally set standards; 
Program reviewed: National Association of Insurance Commissioners 
(NAIC): develops model state-level insurance laws and regulations; 
Federal agency involved in program implementation: Works with CMS and 
other agencies that deal with insurance. 

Standard setting mechanism: State adoption of externally set standards; 
Program reviewed: Other recognized standard-setting bodies; 
Federal agency involved in program implementation: All agencies are 
encouraged to contribute to and adopt standards. 
		
Source: Program documents. 

[End of table] 

It should be noted that each of the mechanisms we describe represents 
an ideal type—that is, the elements listed for each mechanism are 
characteristic of that mechanism and define a "pure case" to which 
specific programs can be compared. In the real world, few, if any, 
programs will match the "pure case" completely, and a complex program 
may incorporate more than one mechanism. 

We conducted our work between June 2001 and February 2002 in 
accordance with generally accepted government accounting standards. 
Because our work drew only on already available materials, we did not 
seek agency comments on our findings. 

Standard-Setting Mechanisms, Implementation Roles Link States to 
National Regulatory Objectives: 

We identified five regulatory or standard-setting mechanisms and four 
patterns of implementation or enforcement that characterize areas in 
which the federal government and the states share regulatory 
objectives and responsibilities. The five mechanisms are: 

* fixed federal standards that preempt all state regulatory action in 
the subject area covered; 

* federal minimum standards that preempt less stringent state laws but 
permit states to establish standards more stringent than the federal; 

* inclusion of federal regulatory provisions in grants or other forms 
of assistance; 

* cooperative programs in which voluntary national standards are 
formulated by federal and state officials working together; and; 

* widespread state adoption of voluntary standards formulated by quasi-
official entities. 

The first two mechanisms involve preemption. The other three represent 
alternative approaches. The mechanisms differ in terms of which level 
of government sets standards and whether application of the standards 
within a state is voluntary or mandatory. 

The mechanisms also offer different options with respect to 
implementation or enforcement. Fixed federal standards and minimum 
federal standards permit three patterns of implementation: (1) direct 
implementation by the federal agency, (2) implementation by the 
states, approved by and under some degree of oversight by the federal 
agency, and (3) a combination of federal agency and federally approved 
state implementation. Grants follow the second of these patterns. The 
remaining two mechanisms follow a fourth pattern, direct 
implementation by the state under its own authority. These three 
mechanisms vary in the degree of federal oversight they can 
accommodate. 

Standard-setting mechanisms and implementation options in the programs 
we reviewed form combinations as illustrated in table 2. We will 
discuss each mechanism, implementation options associated with that 
mechanism, and operational issues that have arisen in the programs we 
reviewed. 

Table 2: Standard-Setting Mechanisms and Implementation Patterns: 

Standard setting mechanism: Fixed federal standards; 
Origin of standard or regulation: Federal (mandatory)[A]; 
Implementation pattern: Direct federal: ERISA; 
Implementation pattern: Assumed by states under federal oversight: 
HAZMAT motor vehicle; 
Implementation pattern: Combination of direct federal and state-
assumed: [Empty]; 
Implementation pattern: State implemented under state authority: 
[Empty]. 

Standard setting mechanism: Federal minimum standards; 
Origin of standard or regulation: Federal (mandatory) and state; 
Implementation pattern: Direct federal: [Empty]; 
Implementation pattern: Assumed by states under federal oversight: 
Clean Air; Safe Drinking Water; Motor carrier safety; 
Implementation pattern: Combination of direct federal and state-
assumed: OSHA; Meat and Poultry; HIPAA. 
Implementation pattern: State implemented under state authority: 
[Empty]. 

Standard setting mechanism: Grant conditions; 
Origin of standard or regulation: Federal (voluntary)[B] and state; 
Implementation pattern: Direct federal: [Empty]; 
Implementation pattern: Assumed by states under federal oversight: 
TANF; Synar; 
Implementation pattern: Combination of direct federal and state-
assumed: [Empty]; 
Implementation pattern: State implemented under state authority: 
[Empty]. 

Standard setting mechanism: Grant conditions; 
Origin of standard or regulation: State (must set); 
Implementation pattern: Direct federal: [Empty]; 
Implementation pattern: Assumed by states under federal oversight: 
Title I Education standards; 
Implementation pattern: Combination of direct federal and state-
assumed: [Empty]; 
Implementation pattern: State implemented under state authority: 
[Empty]. 

Standard setting mechanism: Cooperative programs; 
Origin of standard or regulation: Federal/state (voluntary); 
Implementation pattern: Direct federal: [Empty]; 
Implementation pattern: Assumed by states under federal oversight: 
[Empty]; 
Implementation pattern: Combination of direct federal and state-
assumed: [Empty]; 
Implementation pattern: State implemented under state authority: 
Retail food; Shellfish. 

Standard setting mechanism: State adoption of externally set
standards; 
Origin of standard or regulation: State and private standard-setting
entities (voluntary); 
Implementation pattern: Direct federal: [Empty]; 
Implementation pattern: Assumed by states under federal oversight: 
[Empty]; 
Implementation pattern: Combination of direct federal and state-
assumed: [Empty]; 
Implementation pattern: State implemented under state authority: Model 
laws and regulations. 

Source: GAO analysis based on program documents. 

[A] "Mandatory" indicates that the standard applies in every state. 

[B] "Voluntary" indicates that acceptance of the grant or standard is 
up to the state. 

[End of table] 

Fixed Federal Standards Can Involve State Responsibilities: 

Programs Based on Fixed Standards May Involve No State Role
The federal government sometimes assumes sole regulatory authority 
over a specified subject area, either by prohibiting states from 
regulating or by issuing federal regulations that states must follow. 
Both statutes and treaties can preempt in this way. When federal 
statutes indicate that Congress intended the federal government to 
assume sole regulatory authority over a specific subject area, states 
cannot establish either stricter standards or standards that are less 
strict than the federal. A program under federal regulatory authority 
may involve (1) no state role, (2) a parallel state regulatory and 
implementation role, or (3) state implementation of the federal 
regulatory provisions or standards. 

Programs Based on Fixed Standards May Involve No State Role: 

In some instances, the federal government both regulates and assumes 
responsibility for enforcement or implementation—states do not perform 
either function. In addition to establishing uniform standards 
nationwide, this approach establishes a single locus of accountability 
and program direction. The federal agency that administers the program 
provides the resources and bears the costs. 

Regulation of employer-based pension plans, pursuant to the Employee 
Retirement Income Security Act of 1974 (ERISA), provides an example. 
Federal standards were viewed as needed in light of the importance of 
these plans to interstate commerce and the need to protect employees 
and their beneficiaries from loss of benefits due to unsound or 
unstable plans. ERISA established, among other requirements, 
fiduciary, reporting, and disclosure requirements that apply to 
private employee pension plans in the United States. ERISA supersedes 
all state laws that relate to ERISA pension plans. The Pension and 
Welfare Benefits Administration (PWBA) of the Department of Labor is 
responsible for administering and enforcing these ERISA provisions, 
and states do not have an enforcement role. 

Regulatory Authority May Be Divided between the Federal Government and 
the States: 

In other instances, regulatory authority is divided between the 
federal government and the states. States retain the power to 
establish and implement regulations for their portion of the sector 
but are precluded from applying them within the federal portion. 
Regulation of health coverage under ERISA provides an example. The 
federal government regulates all employee health plans. If an employer 
chooses to provide coverage through an insurance policy, that policy 
is subject to state regulations. Approximately 60 percent of 
individuals participating in employer sponsored plans are covered by 
state regulated insurance policies. 

This division of authority can lead to potential differences in 
coverage requirements, uncertainty, and litigation. As a result, 
individuals in similar plans may have different rights and remedies. 
Federal legislation in certain health coverage standards in recent 
years has set federal minimum standards that generally apply to all 
health plans.[Footnote 7] 

States Can Assume Responsibility for Implementing Federal Provisions: 

In some program areas, states implement or enforce federal standards 
that preempt state laws or regulations. The Hazardous Materials
Transportation Act, as it applies to motor vehicles, illustrates this 
approach.[Footnote 8] In order to provide adequate nationwide 
protection against the risks to life and property inherent in the 
transportation of hazardous materials, this act authorizes the 
Secretary of Transportation to regulate the transportation of such 
hazardous materials not only in interstate and foreign commerce but 
also in intrastate commerce. The act and federal regulations 
prescribed under the act generally preempt state requirements that are 
not substantively the same as the federal.[Footnote 9] However, most 
of the roadside commercial vehicle inspections applying hazardous 
material (HAZMAT) regulations are done through state programs. Under 
the Motor Carrier Safety Assistance Program (MCSAP), states that meet 
grant requirements can take responsibility for enforcing these 
regulations for both intrastate and interstate vehicles, and nearly 
all states have done so.[Footnote 10] These requirements include 
adopting state HAZMAT transportation regulations identical to the 
federal regulations for commercial vehicles and having the legal 
authority and resources to enforce them. In return, the states receive 
federal grants to cover a portion of their program costs. 

Enlisting the efforts of state agencies greatly expands the resources 
available for implementation or enforcement. In each of the programs 
we examined, activities to support federal regulations built upon 
activities that states already performed. However, this strategy also 
raises some major operational issues or questions, for example: 

* Who will carry out enforcement activities in states that are 
unwilling or unable to do so? 

* What share of state program operation costs, if any, should the 
federal government cover? 

* Which level of government is accountable for ensuring that state 
performance is adequate, and for taking action if it is not? 

* Is uniformity of enforcement important, and if so how can it be 
achieved? 

State implementation was an option under each of the five standard-
setting mechanisms we examined. We discuss this option with respect to 
each mechanism, and include a summary discussion of its advantages and 
limitations in the final section of the report. 

Minimum Federal Standards Feature Shared Regulation and Implementation: 

Under minimum federal standards, the federal government, through 
statutory or regulatory means, establishes a minimum national standard 
that preempts less stringent and conflicting state laws and 
regulations. Minimum standards are often designed to provide a 
baseline of consumer protection in areas such as environmental 
protection, health care, food supply, vehicle safety, and working 
conditions. This mechanism supports the achievement of a national 
objective while at the same time permitting states that wish to set 
higher standards to do so. States typically participate in enforcing 
the federal regulations, as well as any regulations of their own, and 
share in the cost. 

States Can and Some Do Regulate Beyond the Federal Minimum: 

Although states may not enforce standards less stringent than the 
federal minimum, they may generally establish standards that are 
stricter than the federal standards (as long as they do not unduly 
burden interstate commerce). Some of the minimum standards programs we 
examined offered states considerable scope in this regard, preserving 
in part the leadership role that states had performed before the 
federal government stepped in. For example, under the Occupational 
Safety and Health Act (OSHA) states may, and many do, set standards 
for hazards, such as ergonomic injury, for which no federal standard 
has yet been established.[Footnote 11] 

For example, states regulate hazards not covered by federal OSHA 
standards. 

* Ten states have state-specific standards on logging practices. 
Alaska also developed safety codes for highline, tractor, and 
helicopter logging. 

* California adopted the first repetitive-motion injury standard in 
the nation in 1997. Washington state's ergonomic rule, which differs 
from California's, followed in 2000. 

* Several states adopted needlestick standards to guard against 
injuries from bloodborne pathogens before there was an OSHA standard. 
Pursuant to the Needlestick Safety and Prevention Act, an updated OSHA 
standard for bloodborne pathogen standards was published and made 
effective in April 2001.[Footnote 12] 

In addition, state requirements exceed OSHA's. 

* New Mexico developed a standard for public sector firefighters that 
state officials describe as "more effective" than OSHA's standard on 
firefighting. 

* Some states require employers to prepare a workplace safety and 
health plan, which OSHA regulations do not require. 

Federal and State Governments Share Implementation Responsibilities: 

Each of the minimum standards programs we examined provide for state 
implementation or enforcement of federal regulatory provisions, with 
the federal agency contributing funds and/or oversight to varying 
degrees. States could assume responsibility for program implementation 
if they met certain requirements. In every case we examined, states 
had to show that they had regulations no less stringent than the 
federal standards and the legal authority necessary for enforcement. 
Some programs added other requirements, such as having adequate 
funding and personnel, having enforcement procedures, and 
participating in certain data systems. OSHA requires a state to 
demonstrate the adequacy of its enforcement operations for a year 
before granting final approval for the state to operate the program. 

Table 3 illustrates the divisions of implementation responsibility we 
encountered. As this table illustrates, the federal government, the 
states, or both may be involved in implementing a particular program 
in a given state. The state implementation role may encompass the 
entire regulated sector (as in Motor Carrier Safety), only the 
intrastate portion (as in Meat/Poultry), or be transferred provision 
by provision as states are ready to assume responsibility (as in the 
Clean Air program). Programs also differ in the inducements offered to 
states to assume responsibility and in provisions for federal oversight 

Table 3: Division of Implementation Responsibility in Minimum 
Standards Programs: 

Federal minimum standards program: Meat and poultry inspection: 
regulates plants that process meat and poultry; 
Federal implementation responsibility: Primary responsibility for all 
plants in interstate commerce and plants that sell only within a 
state, where state has not assumed responsibility. Oversees state 
programs; 
State implementation responsibility: States can assume responsibility 
for implementation in plants that sell only within the state; 
Federal grant as percentage of state cost: Up to 50. 

Federal minimum standards program: Occupational safety and health: 
regulates workplace hazards; 
Federal implementation responsibility: Primary responsibility for the 
federal program, which covers private employers; 
States can assume responsibility for operating the federal program; 
those that do so must cover state and local government employees as 
well; 
Federal grant as percentage of state cost: Up to 50. 

Federal minimum standards program: Safe Drinking Water: regulates 
public drinking water systems; 
Federal implementation responsibility: Oversees state implementation; 
can enforce directly if state performance is deemed inadequate; 
State implementation responsibility: Gives primacy in enforcement of 
federal regulations and standards to states that meet certain 
requirements; 
Federal grant as percentage of state cost: Up to 75. 

Federal minimum standards program: Clean Air: regulates air quality; 
Federal implementation responsibility: Oversees state implementation; 
can assume responsibilities if state
performance is deemed inadequate; 
State implementation responsibility: Act recognizes states’ primary 
responsibility for pollution control, gives primacy in enforcement of 
federal standards to states that submit an acceptable plan; 
Federal grant as percentage of state cost: Up to 60. 

Federal minimum standards program: HIPAA: regulates portability and 
renewability of health plan coverage; 
Federal implementation responsibility: 
* CMS, DOL enforce for health plans under their jurisdiction; 
* CMS enforces for state-regulated plans if state does not do so; 
State implementation responsibility: Primary responsibility enforcing 
for health insurance plans within state jurisdiction if state 
standards conform to or exceed the federal standards; 
Federal grant as percentage of state cost: N/A. 
				
Federal minimum standards program: Motor carrier safety: regulates 
commercial vehicles and drivers; 
Federal implementation responsibility: Complementary to states. 
Conducts compliance reviews of carriers. Can inspect only vehicles in 
interstate and foreign commerce;
State implementation responsibility: Required of states that accept 
the grant. Inspects vehicles in both interstate and intrastate 
commerce. Can also conduct compliance reviews of carriers; 
Federal grant as percentage of state cost: Up to 80. 

Source: Program documents. 

[End of table] 

The minimum standards programs we reviewed induced state
participation through (1) statutory language concerning state
responsibility for the regulatory area concerned, (2) offering grant 
funds to states that participate, and (3) providing for direct federal 
enforcement in states that do not participate. Statutory language may 
imply that state participation is voluntary or that it is a state 
responsibility. To illustrate: 

* The OSHA statute encourages "states to assume the fullest 
responsibility for the administration and enforcement of their 
occupational safety and health laws" and provides for any state that 
"desires to assume responsibility" for enforcing federal standards to 
submit a state plan,[Footnote 13] while: 

* The Clean Air Act specifies, "Each State shall have the primary 
responsibility for assuring air quality within the entire geographic 
area comprising such State by submitting an implementation plan for 
such State which will specify the manner in which national primary and 
secondary ambient air quality standards will be achieved."[Footnote 14]
Federal financial incentives to states also vary considerably. As 
table 3 indicates, all but one of the minimum standards programs we 
reviewed included federal grants that contributed a portion of state 
implementation costs, ranging from up to 50 percent of state program 
costs (OSHA and Meat/Poultry) to up to 80 percent (Motor Carrier 
Safety). The actual amount of the federal contribution depends on the 
funds available in a given year and may be less than the percentage 
shown. The Clean Air Act provides for the state to retain permit fees, 
and the Safe Drinking Water program includes a revolving loan fund in 
each state that helps support local infrastructure projects. Funding 
for two of the programs we studied (safe drinking water and motor 
carrier safety) was increased substantially in reauthorizations during 
the 1990s. However, EPA has reduced the funding for Clean Air grants, 
perhaps in consideration of the availability of permit fees.[Footnote 
15] 

All programs provided for direct enforcement by the federal agency in 
states that did not take on implementation responsibility or that did 
not adequately carry out their responsibilities. This provision is 
necessary to avoid gaps in the protection afforded by the federal 
regulations or standards. State officials may view federal enforcement 
as a threat or as an opportunity, depending on the regulatory function 
concerned and the importance and cost of keeping the function under 
state control. 

Participation rates varied considerably among these programs. Twenty-
one states and 2 territories operate OSHA plans[Footnote 16] and 27 
states operate a meat and poultry inspection program for intrastate 
processors. These programs are directly implemented by the federal 
agency in the remaining states. The other minimum standards programs 
in this study have enlisted universal or nearly universal state 
participation. 

Once states have accepted responsibility for implementing federal 
standards, primary accountability for state agency performance rests 
with state officials and they in turn are accountable to the federal 
level and subject to various degrees of federal oversight. Oversight 
tools available to the federal agency include disapproving a state's 
application for grant funds and withdrawing authorization for the 
state to implement the program. Some of the programs we examined 
require performance-oriented annual plans and reports—a relatively new 
development that reflects the expectations placed on agencies by the 
Government Performance and Results Act (GPRA).[Footnote 17] This and 
other oversight and performance management tools found in these 
programs are illustrated below. 

* Performance-oriented plans: States implementing federal OSHA 
regulations must submit 5-year strategic plans and annual performance 
plans that are comparable to OSHA's GPRA plans and that adopt OSHA's 
strategic goal of improving workplace safety and health for all 
workers.[Footnote 18] Beyond that, states select their own goals. 
Under the Motor Carrier Safety Assistance grant program, state plans 
must include quantifiable performance objectives and measures and 
strategies and specific activities for achieving the objectives. 

* Overfiling: EPA can file its own enforcement actions if it concludes 
that a state's enforcement action under the Clean Air Act was 
inadequate. 

* Financial incentives: The Motor Carrier Safety grant program 
includes incentive funds for states that achieve reductions in fatal 
accident rates for commercial motor vehicles. 

* Sanctions: Under the Clean Air Act, EPA can impose sanctions—
including the withholding of certain federal highway funds—on states 
that have not submitted or not implemented adequate plans to attain 
air quality standards. A "conformity" provision bars federal
departments and agencies from approving or supporting transportation 
improvements in geographic areas that have not attained air quality 
standards, unless the improvements conform with the State 
Implementation Plan.[Footnote 19] 

Grants or Other Forms of Support May Require States to Undertake 
Regulatory Activities: 

Grant programs or other forms of support can also be used to direct 
state efforts toward federal regulatory purposes. Under this 
mechanism, the grant or other instrument requires recipients to 
perform federally specified regulatory or enforcement activities as a 
condition of eligibility to receive support. These requirements apply 
only in states that voluntarily accept the support. However, if the 
grant in question is a significant source of funds for a state, then 
nonparticipation may not be a practical alternative. 

Historically, conditions of the type described above have been 
incorporated in federal grants to states that focused on a particular 
purpose and population—termed categorical grants. Such grants also 
included administrative and reporting requirements to help ensure both 
financial and programmatic accountability. Categorical grants can be 
contrasted to block grants, which are aimed at achieving a broad 
national purpose, afford states considerable flexibility, and have 
limited administrative and reporting requirements. 

In practice, the line between "categorical" and "block" grants has 
become blurred, and many programs include features of both.[Footnote 
20] We examined several recent examples that illustrate how regulatory 
components aimed at directing states' efforts toward specific national 
objectives have been incorporated into grants that otherwise give 
states the broad flexibility of a block grant. The Synar Amendment to 
the Public Health Service Act (Synar Amendment) illustrates the use of 
grant conditions to induce states to have and enforce laws consistent 
with a federal regulatory purpose—restricting access to tobacco by 
underage youth. In another example, the Temporary Assistance for Needy 
Families (TANF) block grant illustrates the use of performance-
oriented federal regulatory provisions in a program that otherwise 
gives states new flexibility in welfare program operation. Finally, 
the Elementary and Secondary Education Act (ESEA) amendments of 1994, 
Public Law 107-110, exemplify an effort to achieve comparably 
challenging standards nationwide by requiring each state that accepts 
a Title I ESEA grant to set and enforce its own standards. 

The Synar Amendment Ties Grant Eligibility to State Legislation: 

The Synar Amendment, passed in 1992, added regulatory conditions to 
the Substance Abuse Prevention and Treatment (SAPT) block grant with 
the national objective of reducing underage youths' access to tobacco 
products. In order to receive a SAPT block grant, a state must have 
and enforce a law prohibiting the sale or distribution of tobacco 
products to any individual under the age of 18. The state is required 
to report annually on enforcement activities and on the extent to 
which the availability of tobacco products to underage youth has been 
reduced. A state's grant funds can be reduced if the state fails to 
meet a target compliance rate negotiated with the Department of Health 
and Human Services (HHS). 

The use of the grant mechanism to regulate underage access to tobacco 
reflects the status of tobacco regulation at the time the Synar 
Amendment was passed. HHS had authority, through the SAPT block grant, 
to fund activities aimed at preventing abuse of alcohol and other 
drugs. Adding the Synar Amendment requirements to the grant enabled 
the Congress to make use of existing state authority to ensure that 
states' substance abuse prevention activities were directed toward 
achieving a particular national public health objective. 

TANF Block Grant Combines Federal Conditions with Increased State 
Flexibility: 

In 1996, welfare reform legislation, known as the Personal 
Responsibility and Work Opportunity Reconciliation Act, Public Law 104-
193, replaced previous assistance programs with a single block grant 
called Temporary Assistance for Needy Families (TANF). TANF was 
expressly intended to increase states' flexibility in welfare program 
operation. TANF gives states broad flexibility to determine 
eligibility, methods of assistance, and benefit levels as long as 
funds are directed to achieving the purposes of the legislation. 
[Footnote 21] Unlike the classic block grant, however, TANF couples 
this flexibility with federal regulatory provisions that states must 
apply, such as a 60-month limit on a parent's receipt of assistance. 
TANF also includes accountability requirements that link state 
performance to the purposes expressed in the legislation, among them: 

* detailed, results-oriented state reporting requirements; 

* financial penalties for failure to submit timely reports, meet 
certain financial requirements, or achieve minimum work participation 
rates; and; 

* bonuses for performance. 

These requirements, like those in the Synar Amendment, are similar to 
those that states must meet under preemptive regulatory programs. 
However, there is an important difference between federal fixed and 
minimum standards and those mechanisms based solely on assistance. 
Federal fixed and minimum standards apply to and must be implemented 
in every state, with the federal agency implementing the program 
directly if the state does not do so. Regulatory conditions imposed by 
means of acceptance of grants or other forms of assistance apply only 
to states that accept the assistance. If a state elects not to 
participate in the grant program, the federal standards contained in 
the grant do not apply in that state and the federal agency that 
administers the grant program does not step in to implement them. 
Thus, the condition-of-assistance mechanism may lead to gaps in 
coverage. Federal interest in avoiding such gaps gives states some 
leverage to negotiate for acceptable conditions or for limiting the 
existence and application of federal sanctions. 

Education Grant Requires States to Set Standards: 

Amendments to Title I of the Elementary and Secondary Education Act 
(ESEA) of 1994 illustrate the use of grant conditions to induce states 
to establish their own standards in the interest of achieving a 
national objective. That objective is to ensure that students served 
through the grant (which is targeted to the disadvantaged) are offered 
the same challenging content as students in the state generally and 
are held to the same performance standards.[Footnote 22] Under the 
1994 law, states that received grant funds were required to develop 
and implement challenging content standards that apply to all 
students; develop assessments aligned to those standards; and, based 
on these assessments, develop procedures for identifying and assisting 
schools that fail to make adequate progress toward helping students 
meet these standards.[Footnote 23] 

The notable feature here is that while the requirement to develop and 
implement standards was federal and induced states to adopt a 
federally designated approach to school reform, the standards 
themselves were to be set by each state. There was no expectation of 
national uniformity and no federal minimum—only the criterion that 
every state's standards should, in its own judgment, be "challenging." 
Similarly, the legislation included federal accountability 
requirements, reflecting concern that federal funds spent on education 
had not sufficiently narrowed the gap between disadvantaged students 
and others in the past. However, it provided for each state to set its 
own definition of what constitutes "adequate yearly progress" (AYP), 
which is key to identifying low performing schools and districts that 
are targeted for improvement. 

Experience to date with these grant provisions illustrates the 
dilemmas—from the federal perspective—of relying on state-developed 
standards. While nearly all states had established content standards 
by January 2001,[Footnote 24] outside groups that reviewed these 
standards observed that they varied considerably in clarity and 
specificity and that some could not be considered rigorous.[Footnote 
25] In addition, states differed in how they defined and measured "low 
performing schools." This led to substantial differences in the 
numbers and percentage of schools identified as needing improvement, 
such that schools with comparable levels of student performance could 
be targeted for improvement in one state but not in another. These 
variations directly reflect the kinds of flexibility that were built 
into the Title I legislation. However, the variations—and states' 
slowness in devising adequate assessments—generated concerns.[Footnote 
26] 

The ESEA reauthorization in the winter of 2002 incorporated new or 
expanded requirements for the Title I program, many of them aimed at 
strengthening accountability for results.[Footnote 27] In addition to 
requiring states that accept grant funds to conduct annual assessments 
in mathematics and reading or language arts in grades 3 through 8 by 
the 2005-2006 school year, the law specifies how states must define 
AYP, details the steps that states and local education agencies must 
take with respect to schools that fail to make adequate progress, and 
lists the options they must offer to students in such schools. The law 
also requires states to develop a plan to ensure that, by the end of 
the 2005-2006 school year, all teachers teaching core academic 
subjects within the state are highly qualified. Although it 
significantly expanded the federal role in education, the 2001 
legislation also acknowledges the state role. It prohibits federal 
mandates, direction, or control over a state, local education agency, 
or school's instructional content, academic achievement standards and 
assessments, curriculum, or program of instruction, and it gives 
states and school districts greater flexibility in how they use 
federal funds. In addition, the law establishes a negotiated 
rulemaking process, directing the Secretary of Education to obtain 
advice and recommendations from state and local administrators, board 
members, education professionals, parents, and others involved in 
implementation before issuing proposed federal regulations for the 
program. 

Cooperative Programs Set Standards Jointly, Limit Agency Oversight 
Role: 

We found examples within the Food and Drug Administration (FDA) of 
programs in which national standards for food safety are developed by 
agency and state officials acting together. The general mechanism is a 
cooperative body that develops proposed standards. Those that are 
approved are incorporated as guidance to states in carrying out 
inspection and enforcement procedures. Such nonbinding guidance does 
not preempt state law or have the binding force of federal law or 
regulation. States conduct enforcement activities under their own 
authority, and FDA provides training, program evaluation or audits, 
and technical assistance to state agencies. 

Within this general design, there are variations. For example: 

* In the Retail Food Protection Program, guided by FDA's Food Code, 
the standards development body is the Conference for Food Protection, 
a nonprofit organization that brings together federal, state, and 
local regulators, academics, and representatives of industry and 
consumer groups.[Footnote 28] The conference submits recommendations 
on Food Code issues to the FDA; the FDA then reviews the 
recommendations and either accepts or turns back for further 
discussion. States are encouraged (but not required) to adopt the Food 
Code as the basis for their own regulation of retail food 
establishments such as grocery stores, restaurants, cafeterias, and 
vending machines. Adoption by a significant number of jurisdictions 
generally has taken 3 to 5 years. 

* The National Shellfish Sanitation Program (NSSP) reflects policies 
developed by the Interstate Shellfish Sanitation Conference (ISSC), 
whose members represent states, the industry, and several federal 
agencies (FDA, EPA, and the National Marine Fisheries Service). All 
representatives participate in developing standards, but only the 
states vote in the general assembly, and FDA must sometimes compromise 
to get an issue approved or accept defeat of its proposals. FDA must 
concur with ISSC's proposed policy changes before they are 
incorporated into the program's catalogue of safety procedures, 
referred to as the model ordinance. States agree to enforce the 
requirements of the model ordinance through their participation in the 
NSSP and ISSC.[Footnote 29] The FDA conducts program audits to ensure 
compliance with NSSP policy and applicable federal regulations, but 
its oversight activities are subject to resource, data, and other 
limitations.[Footnote 30] 

The cooperative programs are unlike others within FDA in that they 
reflect FDA's statutory authority under the Public Health Service Act, 
which directs FDA to assist states in the prevention of communicable 
diseases and advise them on the improvement of public health. 

Under the cooperative program mechanism, as under the grant mechanism, 
states have the primary responsibility and authority for implementing 
federally approved standards—and a key role in framing them as well. 
Adoption of the standards is voluntary unless states have bound 
themselves to adopt, as in the shellfish program. There are two major 
drawbacks to this mechanism from a federal perspective. First, 
voluntary adoption does not necessarily provide nationwide application 
of a common standard, as some states may choose not to adopt. Second, 
the federal agency's limited role gives it little leverage over states 
that do not adequately protect their citizens. There is the added 
challenge of how to apply crosscutting food safety regulations such as 
the Hazard Analysis and Critical Control Points (HACCP) process 
control system, which the Department of Agriculture now requires for 
meat and poultry processing. FDA has mandated HACCP for all seafood 
production, including molluscan shellfish.[Footnote 31] Although 
seafood retailers are exempt from the HACCP regulations, the 1997 
edition of the Food Code encourages them to apply HACCP-based food 
safety principles. 

We found federal-state cooperation in framing highway design standards 
as well. Through the National Cooperative Highway Research Program 
(NCHRP), DOT's Federal Highway Administration (FHWA) cooperates with 
the American Association of State Highway and Transportation Officials 
(AASHTO)—an organization of state officials in which DOT is a 
nonvoting member—to support highway research.[Footnote 32] Drawing on 
these results and on task force efforts, AASHTO produces manuals, 
guidance, and specifications regarding highway design, safety, 
maintenance, and materials. FHWA supports the cooperatively produced 
materials. In contrast to the FDA, FHWA does not itself issue the 
guidance documents—they are published by AASHTO and incorporated into 
federal regulations by reference. Thus, the highway design example 
falls on the border between a cooperative program and our next 
category, reliance on standards produced by nonfederal entities. 

Standards Set by Other Entities Can Become National in Effect: 

Our discussion thus far has focused on regulatory standards that are 
developed by the federal government itself or in cooperation with 
states. However, a variety of other entities also develop standards 
and model ordinances covering subject areas within federal and state 
regulatory authority. Some of these entities focus on producing model 
state laws or regulations. When adopted by a sufficient number of 
states, these standards may provide a uniform approach and virtually 
national coverage without federal regulation. In addition, numerous 
private organizations such as Underwriters Laboratories and the 
National Fire Protection Association set national or international 
standards for a given material, product, service, or practice. These 
standards are available for voluntary adoption by industry, states, or 
federal agencies. When incorporated into a U.S.-ratified treaty or 
adopted by a federal agency such as OSHA, these externally developed 
standards have the status of federal law. 

Uniform State Laws Can Provide National Coverage: 

State officials long ago recognized that certain areas within their 
jurisdiction would benefit from a uniform approach. The National 
Conference of Commissioners on Uniform State Laws (Uniform Law 
Commissioners, or ULC), a nonprofit unincorporated association 
consisting of commissioners appointed by the states and supported by 
state appropriations, has worked for uniform laws since 1892. 
[Footnote 33] The ULC drafts uniform or model state acts in subject 
areas in which uniformity will produce significant benefits (such as 
facilitating commerce across state lines through the Uniform 
Commercial Code) or will avoid the disadvantages that arise from 
diversity of state laws (such as the Act on Reciprocal Enforcement of 
[child] Support). While the ULC generally avoids taking up areas in 
which no legislative experience is available or that are controversial 
among the states, it does address emergent needs. For example, ULC 
proposed model laws on electronic signatures and health care privacy 
before there was federal legislation on these subjects. 

Once a uniform or model law is drafted, commissioners take it back to 
their states for consideration. Some (including the model electronic 
signatures law) have been adopted by most states. Others (such as the 
model health information law) have been adopted by relatively few. 
Implementation is left to each state. There is no federal role unless 
the Congress determines that federal legislation on the subject is 
needed. The same is true when states adopt standards developed through 
private standards development organizations. 

Uniform state laws or regulations are also developed by entities that 
address a particular regulatory area, such as insurance. The National 
Association of Insurance Commissioners (NAIC), an organization of 
insurance regulators from the states, is such an entity. It was 
founded to address the need to coordinate regulation of insurers that 
operate in a number of states. The NAIC develops model laws, 
regulations, and guidelines and reviews the activities of state 
insurance departments as part of its accreditation program.[Footnote 
34] Model laws have addressed issues such as capital and surplus 
requirements and risk limitation. The NAIC's model regulation that 
sets minimum standards for Medicare supplemental insurance policies 
(known as "medigap" policies) has been incorporated by reference into 
federal Medicare legislation and regulations. The Gramm-Leach-Bliley 
Act of 1999 (P.L. 106-102) involves NAIC in a different way. That act, 
which deals with the financial services industry, encourages states to 
adopt uniform laws and regulations governing licensure of individuals 
and entities authorized to sell insurance within the state and 
providing for cross-state reciprocity in licensure. The act directs 
NAIC to determine whether at least a majority of the states have 
achieved uniformity within 3 years of the legislation's enactment. 
This target was met—by January 2002 the model act adopted by NAIC had 
been adopted by 39 states. If the target had not been met, the Act 
specified that a new nonprofit corporation, subject to NAIC 
supervision, be established to provide for state adoption of uniform 
insurance licensing laws. 

Federal Regulations May Incorporate Private-Sector or International 
Standards: 

In the United States, private sector standards are the product of a 
decentralized, largely self-regulated network of more than 620 
private, independent standards-development organizations and testing 
laboratories. A private nonprofit organization, the American National 
Standards Institute, establishes rules for developing standards on the 
basis of the consensus of the parties represented in the technical 
committees. 

The federal government directs agencies to use standards developed 
through this system except where inconsistent with law or otherwise 
impractical, and it encourages them to participate where appropriate 
in standards-setting organizations.[Footnote 35] The Occupational 
Safety and Health Act contains similar direction, and the OSHA 
Administration and other federal regulatory agencies have incorporated 
privately developed standards into their own agency regulations. 

Hazards addressed through federal-state regulation in the United 
States may also be of international concern and become the subject of 
international agreements. For example, criteria for classifying 
dangerous chemicals in transportation have been internationally 
harmonized through the United Nations' Recommendations on the 
Transport of Dangerous Goods. DOT uses these criteria in developing 
U.S. HAZMAT regulations, which in turn are translated into state 
regulations for HAZMAT transportation as discussed previously in this 
report. Similarly, the FDA works with the Codex Alimentarius 
Commission, an international food standard-setting organization, thus 
helping ensure consistency of the Food Code (which states can adopt) 
with international standards. Thus, regulation through the mechanisms 
discussed above serves to align state as well as federal standards to 
those set internationally. 

Experience with These Mechanisms Suggests Considerations for Future 
Programs: 

Our review indicates that regulations or standards consistent with 
federal objectives can be formulated through a variety of mechanisms 
and implemented through various combinations of state and federal 
efforts. Each standard-setting mechanism offers different advantages 
and limitations, as do the various patterns of implementation. We 
discuss these advantages and limitations in terms of federal-state 
balance and in terms of operational challenges. Drawing on this 
discussion, we suggest how findings from our review could guide 
decisions regarding future programs. 

Differences among Mechanisms Reflect Key Factors for Considering 
Federal-State Balance: 

The standard-setting mechanisms we reviewed can be compared in terms 
of factors that the U.S. Advisory Commission on Intergovernmental 
Relations and other students of federalism have considered to be key 
in examining issues of federal-state balance.[Footnote 36] As the body 
of literature from these authors suggests, the factors apply on a case-
by-case basis, taking into consideration the particular national 
objective concerned and circumstances relevant to its achievement. Key 
factors include: 

* Uniformity: Does this mechanism provide uniform standards and 
nationwide coverage if essential to the national objective? 

* Flexibility: Does it allow for flexibility where appropriate to that 
objective? 

* Capacity: Does the mechanism assign responsibility appropriate to 
each level of government's capacity to do the job at hand, taking into 
account breadth of jurisdiction, enforcement powers, resources, and 
location? 

* Accountability: Can accountability to the federal government be 
incorporated into this mechanism if essential to achieving the 
national objective? 

Table 4 compares the five mechanisms in terms of these factors. This 
presentation reveals more clearly how the mechanisms differ in terms 
of the factors that a policymaker may consider critical to a 
particular objective. The table also highlights program design choices 
that can be made within each mechanism. For example, while flexibility 
is inherently limited under federal fixed standards, grant conditions 
can be written to give as much or as little flexibility as is 
appropriate to the federal objective concerned. 

Table 4: Standard-Setting Mechanisms and Federal-State Balance Factors: 

Factor: Uniformity; 
Federal fixed standards: Establishes uniform standards; 
Federal minimum standards: Establishes uniform minimum standards; 
beyond that, standards may vary across states; 
Grant conditions: Can provide for uniform, uniform minimum, or state-
specific standards; 
Cooperative standards: Provides uniform model standards; states can 
adopt in entirety or in part; 
External standards: Provides uniform model standards; states can adopt 
in entirety or in part. 

Factor: Uniformity; 
Federal fixed standards: Ensures coverage in all states; 
Federal minimum standards: Ensures coverage in all states; 
Grant conditions: Coverage limited to participating states; 
Cooperative standards: Coverage limited to states that adopt the 
standards; 
External standards: Unless incorporated into federal regulation, 
coverage limited to states that adopt. 

Factor: Flexibility; 
Federal fixed standards: None, unless there is provision for waiver; 
Federal minimum standards: States can establish standards more 
stringent than the federal; 
Grant conditions: Varies: as specified in each grant; 
Cooperative standards: Unless otherwise bound by their participation, 
states are free to adopt these standards or use others of their own 
choosing; 
External standards: Except where incorporated into federal regulation, 
states are free to adopt these standards or use others of their own 
choosing. 

Factor: Capacity; 
Federal fixed standards: Can tap federal resources, enlist state 
resources in implementation; 
Federal minimum standards: Can tap federal resources, enlist state 
resources in implementation; 
Grant conditions: Can tap federal resources, enlist state resources in 
implementation; 
Cooperative standards: Relies primarily on state capacity but can be 
augmented through federal grants; 
External standards: Unless incorporated into federal regulation, relies
primarily on state capacity. 

Factor: Capacity; 
Federal fixed standards: Division of costs an issue; 
Federal minimum standards: Division of costs an issue; 
Grant conditions: Division of costs an issue; 
Cooperative standards: Division of costs an issue; 
External standards: [Empty]. 

Factor: Accountability; 
Federal fixed standards: Federal agency unless states implement; can
incorporate provisions holding states accountable; 
Federal minimum standards: Federal agency unless states implement; can
incorporate provisions holding states accountable; 
Grant conditions: Can incorporate provisions holding states 
accountable; 
Cooperative standards: Rests with state agencies, accountable to state 
officials; 
External standards: Unless incorporated into federal regulation, rests 
with state agencies accountable to state officials. 

Source: GAO analysis. 

[End of table] 

Implementation Brings Operational Challenges: 

Although direct implementation by a federal agency can be advantageous 
in certain situations, this approach presents its own set of 
challenges and limitations. In this study, we focused on the 
operational challenges that arise in shared federal-state 
implementation. First, shared implementation raises delicate issues of 
federal-state agency relations, oversight, and accountability. 
Legislators and agencies may have difficulty finding a level of 
oversight that is sufficient to protect against the harm that could 
come from inadequate state action while providing states the authority 
and flexibility needed to do the job effectively. Oversight tools such 
as the performance incentives and sanctions illustrated in our 
discussion of federal minimum standards programs can be designed with 
this purpose in mind. Another approach is the use of performance 
partnerships.[Footnote 37] 

Second, while overall resource adequacy may be an issue under any 
pattern of implementation, reliance on states to implement federal 
standards also raises questions about allocating costs between the 
federal government and the states. If federal funds are provided, the 
issue of fiscal substitution (use of federal funds to replace state 
funds) may also arise. Options for addressing these issues include the 
following: 

* The state's share can be preserved through the use of fiscal 
provisions such as maintenance of effort or matching 
requirements.[Footnote 38] 

* The federal share may be provided through grants to participating 
states or by permitting states to retain payments generated through 
program operation and enforcement. Grant payments may be "up to" a 
specified percentage of state program cost, but actual payments depend 
on funds available and have sometimes been substantially less. 

If both levels of government participate in administering federal 
regulations, both levels contribute toward the cost. However, if the 
state does not participate, the federal agency administers the program 
at no cost to the state, which leads to a third challenge. 

The third challenge is that implementation arrangements that give the 
federal agency a back-up role can leave it vulnerable to sudden 
increases in responsibility and costs. This can happen when states 
drop their participation, as has happened in the OSHA and Meat and 
Poultry programs. It can also happen when states are judged by the 
agency to have failed to meet their responsibilities. The federal 
government may also bear the cost of enforcement temporarily when new 
provisions need enforcement before states are ready to assume this 
responsibility. We saw examples of each of these circumstances in the 
programs we reviewed. 

Fourth, shared implementation tends to produce variation in program 
implementation because states' approaches may differ from each other 
and from the federal agency's. For example, states may prefer to 
emphasize assistance while the federal agency relies more on 
enforcement actions to induce compliance.[Footnote 39] The variation 
may be appropriate and reflect a need for flexibility in light of 
differing conditions and to target limited resources to the problems 
that pose the greatest risk. If variation is not deemed appropriate—
for example, if the national objective requires that enforcement 
actions as well as standards be uniform—federal requirements and 
oversight can be strengthened to provide uniformity. 

Finally, change can be cumbersome under federal-state implementation. 
Every time a federal statute or regulation changes, each state must 
make a corresponding change to its own statute or regulation before it 
can implement the new provision. This can lead to substantial delays, 
and states have observed that frequent change can become a burden. For 
example, the Association of Food and Drug Officials have noted the 
difficulty of amending regulations to keep up with changes in the Food 
Code every two years. 

Questions Derived from These Observations Can Guide Future Program 
Decisions: 

Our review led us to conclude that setting up a regulatory program 
involves three stages of decision making and to develop questions to 
guide those decisions based on the observations summarized above. The 
three stages are: 

* identifying the national regulatory objective and reviewing 
pertinent background information, 

* selecting a standard-setting mechanism appropriate to that 
objective, and, 

* designing appropriate federal and state roles in implementation. 

The last two stages are intertwined. For example, cooperative standard 
setting or reliance on states' adoption of externally set standards 
usually means little or no federal role in implementation. However, 
other mechanisms leave considerable choice with respect to 
implementation arrangements. We illustrate this overall decision 
process, as guided by questions reflecting key factors, below. 

The National Objective Shapes the Choice of Standard-Setting Mechanism: 

The national objective provides the starting point for selecting the 
mechanism for enlisting state efforts toward that objective. Assuming 
that the objective itself is consistent with the Constitution, factors 
to be considered include: 

* the nature of the hazard or practice to be regulated, for example, 
- how widely it is distributed geographically and whether it is cross-
state in nature, 
- the risks it poses, and, 
- whether protection against these risks is needed immediately or 
within a period of years; 

* existing federal statutory authority and capacity that could form 
the basis for setting and implementing standards; 

* the extent to which state or other standards and enforcement are 
already in place and the resources and capacities available to support 
them; and; 

* the resources and capacities that are likely to be needed to 
formulate and implement or enforce new standards in this area. 

This background information can be expressed in the form of questions 
that will help in assessing the extent to which federal action is or 
is not needed and what form it might take (see figure 1). For example, 
the information may indicate that states are already handling the 
problem. The review of existing statutory authority will help 
policymakers determine whether new authority would be needed to 
establish federal standards. Finally, background information will 
provide a foundation for examining the objective in terms of federal-
state balance factors and for proceeding to consider the choice of 
standard-setting mechanism. The discussion and figures that follow 
assume that policymakers have concluded that federal action is 
warranted and are contemplating designing a new program or rethinking 
an existing program. 

Figure 1: Defining the National Objective and Examining Background 
Questions: 

[Refer to PDF for image: illustration] 

Starting point for decision: 
Define the national regulatory objective. 

Consideration: 
	
Background question: 
Is the hazard or practice to be regulated national in scope?
No: Consideration: Hazards or practices that occur in only a few 
states could perhaps be handled at the state or regional level.
Yes: Continue. 

Background question: 
Is the need for protection immediate?
No: Consideration: Voluntary state adoption, which may take several 
years or more, may be a viable option. 
Yes: Continue. 

Background question: 
To regulate this hazard, would the federal government need statutory 
authority beyond what is currently available?
No: Consideration: If authority already exists, the objective might be 
met by broadening an existing program.
Yes: Continue. 

Background question: 
Are effective regulatory and enforcement activities already being 
carried out by states or other entities? 
Yes: Consideration: If state efforts are achieving the national 
regulatory objective, federal action may not be needed. 
No: Continue. 

Background question: 
Would substantial additional federal and/or state resources (human and 
financial capital and technical capacity) be needed to achieve the 
desired protection? 
Yes: Consideration: Resource considerations may be especially 
important to decisions on implementation options. 
No: Proceed to selection of a standard setting mechanism. 

[End of figure] 

For the next stage of decision making, selection of a mechanism for 
pursuing the national objective, we depict the decision process as a 
series of questions or gates in order to make explicit what are often 
implicit considerations in decision making (see figure 2). We start 
with the question of whether—pursuant to the national objective in 
question—federal fixed or minimum standards would be acceptable in 
terms of federal-state balance. Our presentation does not imply that 
federal standards are the best choice but only that if they raise 
difficult issues consideration must move immediately to other options. 

Figure 2: Selecting a Standard-Setting Mechanism: 

[Refer to PDF for image: illustration] 

Decision question: 
1) Is federal regulation acceptable in terms of federal-state balance? 
Yes: Go to #2. 
No: Does the objective require that common standards be in place in 
every state? 
If no: Option: Consider encouraging a state-based or other external 
group to develop and promote a model standard; 
Comments: 
* Since adoption is voluntary, coverage may not be national and 
standards may vary from state to state; 
* It may be useful to explore reasons for nonadoption and to examine 
standards and outcomes in states that do not adopt. 
Option: Consider working with states to develop standards 
cooperatively; 
Comment: Consider asking states to commit to adoption as a condition 
of participation. 
If yes: Option: Consider offering grants to states to encourage 
efforts that support the national objective. 
Comment: Can achieve national coverage if the grant sets acceptable 
conditions and is one that states cannot realistically refuse. 

2) Would minimum federal standards provide adequate protection and 
would stricter state standards be workable? 
No: Go to #3; 
Yes: Does the objective No require that common minimum standards be in 
place in every state? 
If yes: Option: Consider preemption accompanied by a federal minimum 
standard; 
Comment: May need to prohibit state actions inconsistent with the 
objective, such as those that would burden interstate commerce. 
If no: Option: Consider encouraging a state-based or other external 
group to develop and promote a model standard; 
Comments: 
* Since adoption is voluntary, coverage may not be national and 
standards may vary from state to state; 
* It may be useful to explore reasons for nonadoption and to examine 
standards and outcomes in states that do not adopt. 
Option: Consider working with states to develop standards 
cooperatively; 
Comment: Consider asking states to commit to adoption as a condition 
of participation. 
Option: Consider offering grants to states to encourage efforts that 
support the national objective. 
Comment: Can achieve national coverage if the grant sets acceptable 
conditions and is one that states cannot realistically refuse. 

3) Is a fixed nationwide standard essential to achieving the national 
objective? 
If No: Go to #4; 
If Yes: Option: Consider preemption accompanied by fixed federal 
standards; 
Comments: 
* May need to provide for waivers or exceptions under special 
circumstances; 
* If portions of the sector are regulated by different entities, 
consider whether uniformity across all portions of the sector is 
needed and how it might be achieved. 

4) Reconsider information and options. 

[End of figure] 

If federal standards would likely be unacceptable, the next question 
(to the right on figure 2) is whether uniform regulations and 
nationwide coverage are essential to attaining the national objective. 
If not, policymakers may explore what could be achieved through state 
adoption of externally developed standards or by cooperating with 
states to set voluntary standards. This exploration should bear in 
mind that these mechanisms rely wholly on states for implementation 
and may not provide for central monitoring and uniform reporting. It 
is important to review the potential need for these practices and how 
they could be provided in the absence of direct federal oversight If 
uniformity and nationwide coverage are essential, incorporating a 
federal standard into grant conditions could enlist the efforts of 
nearly all states. 

The next step is to consider whether federal minimum standards—which 
provide a baseline of protection but also allow variation from state 
to state above the minimum—or fixed federal standards would best 
achieve the national objective in question. For purposes of 
illustration (one could start with either option) our diagram first 
asks whether minimum standards would be appropriate. If so, and if 
that objective does not demand full national coverage, each of the 
alternative mechanisms would again be an option. However, if national 
coverage were essential, federal minimum standards would be the 
mechanism of choice. 

If federal standards are allowable and minimum standards are not 
appropriate—or if a common, unvarying nationwide standard is essential 
to attainment of the objective—fixed federal standards and the 
possible need to allow waivers should be considered. In considering 
the coverage needed for the standards to be effective, it is useful to 
think in terms of sector coverage as well as geographic scope. As the 
ERISA health plan example illustrates, uniformity will not be attained 
if standards cover only the federally regulated portion of a divided 
sector. 

It may happen that when all mechanisms have been considered, none 
seems truly appropriate. Such an outcome suggests that something has 
been missed along the way and that it would be useful to gather 
additional information and to revisit earlier steps in the decision 
process. The final step is to ensure that the mechanism chosen and the 
purpose are consistent with Congress's authority to regulate under the 
Constitution. 

Some Mechanisms Offer Options for Implementation: 

Fixed federal standards and minimum federal standards offer a choice 
between (1) direct federal implementation, (2) assumption of 
implementation responsibility by all states, and (3) assumption by 
some states, with direct federal administration in others. Whenever 
implementation by states is selected (under federal standards or 
through grants) there are choices to be made regarding the design of 
accountability, funding, and flexibility provisions. We now discuss 
factors to be considered in selecting and designing implementation 
options, as illustrated in figure 3. 

Figure 3: Examining Implementation Options: 

[Refer to PDF for image: illustration] 

Design question: 
Is there a need for direct federal administration, in light of the risks
addressed and capacity and accountability considerations? 
Yes: Option: Consider direct administration by the federal agency; 
No: continue. 

Design question: 
Is implementation by all states desirable and a realistic option, in 
terms of state and federal capacity? 
Yes: Option: Consider inducing all states to implement; Continue to 
design questions. 
No: continue. 

Design question: 
Are some states currently willing and qualified to assume 
responsibility for implementation? 
Yes: Option: 
* Consider actions to increase capacity in states not currently 
qualified; 
* Consider inducing qualified states to implement; 
* If standards are preemptive, provide for direct administration where 
states do not assume responsibility; 
* Design provisions for state withdrawal that allow for an orderly 
transition for both the state and the federal agency; 
* Continue to design questions. 
No: Reconsider information and options. 

Design Questions: A. Accountability: 

1. Does federal interest in attaining particular results require that 
states be held accountable for their performance in this regard? 
Followup Actions: 
Yes: Provide for collection of performance information.
Design accountability provisions for those specific goals; 
No: Leave unspecified or direct each state to set its own performance
goals. 

2. Are agency back-up or oversight powers needed Yes to avert risk if 
state does not perform adequately? 
Followup Actions: 
Yes: Provide appropriate agency back-up and oversight powers and 
procedures for corrective action; 
No: Monitor for increases in potential risk; provide for technical
assistance if needed. 

B. Funding: 

1. Will federal funds be needed to cover added state responsibilities 
or ensure that overall resources are sufficient for program operation? 
Followup Action: 
Yes: Estimate federal cost of direct implementation and/or federal 
share of state costs; 
No: Go to question 2. 

2. Will the estimated federal share be sufficient to induce state
participation? 
Followup Action: 
No: Reexamine federal share or increase other inducements; 
Yes: Go to question 3. 

3. Are maintenance of effort or related provisions needed to preserve 
states' contribution? 
Followup Action: Design the provisions; 
No: Go to C. Flexibility. 

C. Flexibility: 

1. Would varied approaches to implementation impede the effectiveness 
of the program? 
Followup Actions: 
Yes: Make adherence to uniform procedures a condition of state 
implementation. 
No: Permit state choice in this regard and/or encourage innovation. 

[End of figure] 

In this figure, we begin the decision process by asking whether the 
national objective and related considerations suggest a need for 
direct federal administration. Direct federal administration might be 
appropriate when: 

* centralized accountability and central direction are critical given 
the nature of the hazards that the standards address; 

* states do not currently have, and the federal government has or can 
develop, the capacity needed to operate the program; 

* uniformity of implementation will enhance or variance will undermine 
the effectiveness of the regulatory approach; and; 

* state and local involvement is not critical to achieving the 
objective. 

While we did not study in depth the option of direct federal 
administration in the regulatory area for this report, experience 
certainly suggests that this option has its own set of challenges and 
limitations. For example, the federal government may not have the 
personnel in place to carry out a program of national concern while 
state and local governments may have sufficient staff with the right 
kind of expertise to provide the needed services. Another challenge 
with this approach is overcoming any reluctance of state and local 
governments to accept the dictates of the federal government in a 
given policy area. It is also important to note that direct 
implementation and enforcement by a federal agency is not a self-
executing decision and that there could be design and implementation 
challenges that might prove sufficiently problematic as to require 
rethinking the decision to use the direct federal administration 
option. 

If direct federal administration is not essential, the next question 
for a federal regulatory program is whether assumption of 
implementation responsibility by all states is desirable and is 
feasible in terms of their capacity. This question arises both under 
federal standards programs and under grants or other forms of support. 
The background information mentioned in figure 1 will likely be of 
assistance here, but additional inquiry may be needed to ascertain 
states' capacity to implement the standards and their likely 
willingness to do so. If assignment to all states appears feasible, 
the next step is to consider more detailed questions of design in 
areas such as federal-state accountability arrangements, funding, and 
flexibility that arise under this option, and to take follow up action 
as needed. Note that while our figure shows only actions for clear 
"yes" or "no" answers, in reality both the answer and the appropriate 
follow up may fall in between or be a mix of the actions shown. 

If many states, but not all, are prepared to accept responsibility for 
implementation of federal standards, the first step might be to 
consider actions to increase capacity in states not currently 
qualified, so as to be able to enlist participation by all states in 
implementation at some future point. The other option would be to 
consider inducing currently willing and qualified states to assume 
responsibility, as in the OSHA program or the meat and poultry 
inspection program. To ensure national coverage, the program design 
will need to provide for direct administration by the federal agency 
in the remaining states. We suggest that the design provide for an 
orderly transition in case of state withdrawal from participation. 
Again, the next step will be to consider the various design questions. 
The funding question is of particular importance for any approach that 
relies largely on financial inducements for state participation. 

Design Questions Can Be Adapted to Purely State Programs: 

The remaining two regulatory mechanisms—cooperative programs and state 
adoption of externally set standards—rely solely on states to 
implement standards under their own authority. States are not 
accountable to the federal government and the federal agency does not
oversee their activities, although it may perform monitoring functions 
such as collecting and reporting performance data. Because the federal 
role is so limited, the design questions we have listed for shared-
implementation approaches are not directly applicable. However, the 
accountability and flexibility questions can be adapted to this 
context. For example, some purely state regulatory programs include 
provision for monitoring and oversight by a central body, such as the 
NAIC. The accountability questions could be applied to its functions. 

Concluding Observations: 

This study of a broad range of existing programs illustrates the rich 
variety of ways in which the federal government and the states can 
work toward achieving shared regulatory objectives. Each variation 
reflects circumstances and sensitive issues specific to the program 
concerned, and each program is unique in some way. But comparative 
analysis reveals both underlying features of program design and trade-
offs between the various options available. Explicitly considering 
these features and tradeoffs could help guide decisions about how to 
structure future federal-state regulatory programs. 

The decision framework we have developed displays the range of options 
available, identifies the major choice points in the decision process, 
and alerts policymakers to trade-offs and key follow-up actions 
associated with each choice. The framework is a neutral tool and does 
not favor any particular program design option or division of federal 
and state responsibilities. Rather, it is intended to help 
policymakers select a program design in keeping with the regulatory 
objective they seek to attain. 

As agreed with your office, we are sending copies of this report to 
appropriate congressional committees and other interested parties. We 
will also make copies available to others upon request. 

If you or your staff have any questions about this report, please 
contact me on (202) 512-9573 or Thomas James on (202) 512-2996. 
Individuals making key contributions to this report included Gail 
MacColl, Andrea Levine, Thomas Phan, and Mary Reintsma. 

Sincerely, 

Signed by: 

Paul L. Posner: 
Managing Director: 
Federal Budget and Intergovernmental Relations: 
Strategic Issues: 

[End of section] 

Footnotes: 

[1] U.S. Const., art. VI, c12. 

[2] Congressional Research Service, Federalism and the Constitution: 
Limits on Congressional Power (September 5, 2000). 

[3] See Congressional Research Service, American Federalism, 1776 to 
2000: Significant Events (November 30, 2000). 

[4] Unfunded Mandates Reform Act of 1995, P.L. 104-4. 

[5] See U.S. General Accounting Office, Elections: Status and Use of 
Federal Voting Equipment Standards, GAO-02-52 (Washington, D.C.: 
October 15, 2001) and related GAO reports cited therein. 

[6] See U.S. General Accounting Office, Homeland Security: Challenges 
and Strategies in Addressing Short- and Long-Term National Needs, 
[hyperlink, http://www.gao.gov/products/GAO-02-160T] (Washington, DC: 
November 7, 2001) and U.S. General Accounting Office, Combating 
Terrorism: Key Aspects of a National Strategy to Enhance State and 
Local Preparedness, GAO-02-473T (Washington, D.C.: March 1, 2002). 

[7] Examples include the Mental Health Parity Act of 1996 and the 
Newborns' and Mothers' Health Protection Act of 1996, both included in 
P.L. 104-204. 

[8] The Hazardous Materials Transportation Act, as amended, is 
codified at 49 U.S.C. §§5101-5127. 

[9] States can apply for a waiver of preemption of a requirement, 
which the Secretary may grant provided that the state provision 
provides at least as much protection as the federal and is not an 
unreasonable burden on commerce. 

[10] The MCSAP also provides for states to implement the federal 
minimum standards for commercial motor carrier safety, discussed in a 
later section of this report. 

[11] These examples are taken from Grassroots Safety & Health in the 
Workplace, the 19992000 State Plan Activities Report of the 
Occupational Safety and Health State Plan Association. 

[12] 66 Fed. Reg. 5318-01, January 18, 2001. 

[13] 29 U.S.C. §§651(b)(11), 667(b). 

[14] 42 U.S.C. §7407(a). 

[15] See U.S. General Accounting Office, Air Pollution: Status of 
Implementation and Issues of the Clean Air Act Amendments of 1990, 
GAO/RCED-00-72, (Washington, D.C.: April 17, 2000). 

[16] Three additional states have state OSHA plans that cover only 
public sector employees. 

[17] Government Performance and Results Act of 1993, P.L. 103-62. 

[18] As stated in the OSHA State Plan Policies and Procedures Manual, 
the goal is to "improve workplace safety and health for all workers, 
as evidenced by fewer hazards, reduced exposures, and fewer injuries, 
illnesses and fatalities." 

[19] For a discussion of these sanctions and their use, see 
Congressional Research Service, Highway Fund Sanctions and Conformity 
Under the Clean Air Act, CRS, Updated October 15, 1999. 

[20] See U.S. General Accounting Office, Grant Programs: Design 
Features Shape Flexibility, Accountability, and Performance 
Information, [hyperlink, http://www.gao.gov/products/GAO/GGD-98-137] 
(Washington, D.C.: June 22,1998). 

[21] These purposes include assisting needy families so that children 
can be cared for in their own homes; reducing needy parents' 
dependence on government benefits by promoting job preparation, work, 
and the formation and maintenance of two-parent families; and reducing 
the incidence of out-of-wedlock pregnancies. For more information see 
U.S. General Accounting Office, Welfare Reform: Challenges in 
Maintaining a Federal-State Fiscal Partnership, [hyperlink, 
http://www.gao.gov/products/GAO-01-828] (Washington, D.C.: August 10, 
2001). 

[22] Standards were to be developed in at least two subjects, 
mathematics and reading or language arts. 

[23] Content standards describe what students should know and be able 
to do. Performance standards define partially proficient, proficient, 
or advanced levels of mastery of the material in the content standards. 

[24] Two states—Iowa and Nebraska—found it difficult to set statewide 
standards and attempted to develop hybrid systems that rely on state 
guidelines for locally selected standards. 

[25] The Council for Basic Education, the American Federal Teachers, 
and the Fordham Foundation conducted separate reviews of the standards. 

[26] Technical difficulties in the assessment process are a 
contributing factor. Devising assessments that are of adequate 
technical quality, aligned to standards, and appropriate for students 
with disabilities or limited English proficiency is a challenge that 
only a few states were able to meet by June of 2001, and states' 
systems for identifying schools in need of improvement were still in 
transition. 

[27] The reauthorization is known as the No Child Left Behind Act of 
2001, P.L. 107-110. 

[28] The FDA also works with the Codex Alimentarius Commission, an 
international food standard-setting organization of the Food and 
Agriculture Organization and the World Health Organization. 

[29] Four foreign countries also have signed memorandums of 
understanding with the FDA to abide by NSSP's shellfish safety 
policies. 

[30] U.S. General Accounting Office, Food Safety: Federal Oversight of 
Shellfish Safety Needs Improvement, [hyperlink, 
http://www.gao.gov/products/GAO-01-702] (Washington, D.C.: July 9, 
2001). 

[31] FDA is responsible for ensuring the safety of seafood under the 
Federal Food, Drug, and Cosmetic Act. See 21 U.S.C. § 376. 

[32] The NCHRP is state-sponsored. Support is voluntary and funds are 
drawn from states' federal-aid highway funds. The Transportation 
Research Board of the National Research Council, a unit within the 
National Academies of Science, administers the research program. 

[33] Although some commissioners serve as state legislators, most are 
practitioners, judges, and law professors. They serve for specific 
terms and receive no pay for their services. 

[34] For a review of this program, see U.S. General Accounting Office, 
Insurance Regulation: The NAIC Accreditation Program Can Be Improved, 
[hyperlink, http://www.gao.gov/products/GAO-01-948] (Washington, D.C.: 
August 30, 2001). 

[35] These directions are found in Office of Management and Budget 
Circular A-119, Federal Participation in the Development and Use of 
Voluntary Consensus Standards and in Conformity Assessment Activities, 
and in the National Technology Transfer and Advancement Act of 1995, 
P.L. 104-113. 

[36] A congressionally chartered organization, the commission examined 
federalism issues from 1959 to 1996. 

[37] See, for example, U.S. General Accounting Office, Environmental 
Protection: Collaborative EPA-State Effort Needed to Improve New 
Performance Partnership System, [hyperlink, 
http://www.gao.gov/products/GAO/RCED-99-17] (Washington, D.C.: June 
21, 1999). 

[38] U.S. General Accounting Office, Federal Grants: Design 
Improvements Could Help Federal Resources Go Further, [hyperlink, 
http://www.gao.gov/products/GAO/AIMD-97-7] (Washington, D.C.: December 
18, 1996.) 

[39] Such differences in philosophy may also exist between regional 
offices of the federal agency. See U.S. General Accounting Office, 
Environmental Protection: More Consistency Needed Among EPA Regions in 
Approach to Enforcement, [hyperlink, 
http://www.gao.gov/products/GAO/RCED-00-10] (Washington, D.C.: June 2, 
2000). 

[End of section] 

GAO’s Mission: 

The General Accounting Office, the investigative arm of Congress, 
exists to support Congress in meeting its constitutional 
responsibilities and to help improve the performance and 
accountability of the federal government for the American people. GAO 
examines the use of public funds; evaluates federal programs and 
policies; and provides analyses, recommendations, and other assistance 
to help Congress make informed oversight, policy, and funding 
decisions. GAO’s commitment to good government is reflected in its 
core values of accountability, integrity, and reliability. 

Obtaining Copies of GAO Reports and Testimony: 

The fastest and easiest way to obtain copies of GAO documents at no 
cost is through the Internet. GAO’s Web site [hyperlink, 
http://www.gao.gov] contains abstracts and full text files of current 
reports and testimony and an expanding archive of older products. The 
Web site features a search engine to help you locate documents using 
key words and phrases. You can print these documents in their 
entirety, including charts and other graphics. 

Each day, GAO issues a list of newly released reports, testimony, and 
correspondence. GAO posts this list, known as “Today’s Reports,” on 
its Web site daily. The list contains links to the full-text document 
files. To have GAO e-mail this list to you every afternoon, go to 
[hyperlink, http://www.gao.gov] and select “Subscribe to daily E-mail 
alert for newly released products” under the GAO Reports heading. 

Order by Mail or Phone: 

The first copy of each printed report is free. Additional copies are 
$2 each. A check or money order should be made out to the 
Superintendent of Documents. GAO also accepts VISA and Mastercard. 
Orders for 100 or more copies mailed to a single address are 
discounted 25 percent. Orders should be sent to: 

U.S. General Accounting Office: 441 G Street NW, Room LM: 
Washington, D.C. 20548: 

To order by Phone: 
Voice: (202) 512-6000: 
TDD: (202) 512-2537: 
Fax: (202) 512-6061: 

To Report Fraud, Waste, and Abuse in Federal Programs Contact: 

Web site: [hyperlink, http://www.gao.gov/fraudnet/fraudnet.htm]: 
E-mail: fraudnet@gao.gov: 
Automated answering system: (800) 424-5454 or (202) 512-7470: 

Public Affairs: 

Jeff Nelligan, managing director, 
NelliganJ@gao.gov: 
(202) 512-4800: 
U.S. General Accounting Office: 
441 G Street NW, Room 7149:
Washington, D.C. 20548: