TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

HISTORICAL AND REVISION NOTES

Derivation U.S. Code Revised Statutes and

Statutes at Large

.................. 5 U.S.C. 1045e. Aug. 30, 1964, Pub. L. 88-499,

§7, 78 Stat. 618.

The word "hereby" is omitted as unnecessary.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined

in the preface to the report.

AMENDMENTS

2008-Pub. L. 110-290 amended section generally. Prior

to amendment, text read as follows: "There are authorized to be appropriated to carry out this subchapter not

more than $3,000,000 for fiscal year 2005, $3,100,000 for

fiscal year 2006, and $3,200,000 for fiscal year 2007. Of any

amounts appropriated under this section, not more

than $2,500 may be made available in each fiscal year

for official representation and entertainment expenses

for foreign dignitaries."

2004-Pub. L. 108-401 reenacted section catchline

without change and amended text generally. Prior to

amendment, text read as follows: "There are authorized

to be appropriated to carry out the purposes of this

subchapter not more than $2,000,000 for fiscal year 1990,

$2,100,000 for fiscal year 1991, $2,200,000 for fiscal year

1992, $2,300,000 for fiscal year 1993, and $2,400,000 for fiscal year 1994. Of any amounts appropriated under this

section, not more than $1,500 may be made available in

each fiscal year for official representation and entertainment expenses for foreign dignitaries."

1992-Pub. L. 102-354 renumbered section 576 of this

title as this section.

1990-Pub. L. 101-422 amended section generally. Prior

to amendment, section read as follows: "There are authorized to be appropriated to carry out the purposes of

this subchapter not more than $1,600,000 for fiscal year

1986 and not more than $2,000,000 for each fiscal year

thereafter up to and including fiscal year 1990. Of any

amounts appropriated under this section, not more

than $1,000 may be made available in each fiscal year

for official reception and entertainment expenses for

foreign dignitaries."

1986-Pub. L. 99-470 substituted "Authorization of appropriations" for "Appropriations" in section catchline

and amended text generally. Prior to amendment, text

read as follows: "There are authorized to be appropriated to carry out the purposes of this subchapter

sums not to exceed $2,300,000 for the fiscal year ending

September 30, 1982, and not to exceed $2,300,000 for each

fiscal year thereafter up to and including the fiscal

year ending September 30, 1986."

1982-Pub. L. 97-330 substituted provisions authorizing appropriations of not to exceed $2,300,000 for fiscal

year ending Sept. 30, 1982, and not to exceed $2,300,000

for each fiscal year thereafter up to and including fiscal year ending Sept. 30, 1986, for provisions that had

authorized appropriations of not to exceed $1,700,000 for

fiscal year ending Sept. 30, 1979, $2,000,000 for fiscal year

ending Sept. 30, 1980, $2,300,000 for fiscal year ending

Sept. 30, 1981, and $2,300,000 for fiscal year ending Sept.

30, 1982.

1978-Pub. L. 95-293 substituted provisions authorizing appropriations for fiscal years ending Sept. 30, 1979,

Sept. 30, 1980, Sept. 30, 1981, and Sept. 30, 1982, of

$1,700,000, $2,000,000, $2,300,000, and $2,300,000, respectively, for provisions authorizing appropriations for fiscal years ending June 30, 1974, June 30, 1975, June 30,

1976, June 30, 1977, and June 30, 1978, of $760,000, $805,000,

$850,000, $900,000, and $950,000, respectively, and provisions authorizing for each fiscal year thereafter such

sums as may be necessary.

1972-Pub. L. 92-526 substituted provisions authorizing to be appropriated necessary sums not in excess of

$760,000 for fiscal year ending June 30, 1974, $805,000 for

fiscal year ending June 30, 1975, $850,000 for fiscal year

ending June 30, 1976, $900,000 for fiscal year ending June

30, 1977, and $950,000 for fiscal year ending June 30, 1978,

and each fiscal year thereafter, for provisions authorizing to be appropriated necessary sums, not in excess of

$450,000 per annum. 1969-Pub. L. 91-164 substituted "$450,000 per annum"

for "$250,000".

EFFECTIVE DATE OF 1978 AMENDMENT

Pub. L. 95-293, §1(b), June 13, 1978, 92 Stat. 317, provided that: "The amendment made by subsection (a)

[amending this section] shall take effect October 1,

1977."

CHAPTER 6-TLE ANALYSIS OF

REGULATORY FUNCTIONS

Sec.

601. Definitions.

602. Regulatory agenda.

603. Initial regulatory flexibility analysis.

604. Final regulatory flexibility analysis.

605. Avoidance of duplicative or unnecessary

analyses.

606. Effect on other law.

607. Preparation of analyses.

608. Procedure for waiver or delay of completion.

609. Procedures for gathering comments.

610. Periodic review of rules.

611. Judicial review.

612. Reports and intervention rights.

§ 601. Defimitions

For purposes of this chapter-

(1) the term "agency" means an agency as

defined in section 551(1) of this title;

(2) the term "rule" means any rule for which

the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of

this title, or any other law, including any rule

of general applicability governing Federal

grants to State and local governments for

which the agency provides an opportunity for

notice and public comment, except that the

term "rule" does not include a rule of particular applicability relating to rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances,

services, or allowances therefor or to valuations, costs or accounting, or practices relating to such rates, wages, structures, prices, appliances, services, or allowances;

(3) the term "small business" has the same

meaning as the term "small business concern"

under section 3 of the Small Business Act, un- less an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of

such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register;

(4) the term "small organization" means any

not-for-profit enterprise which is independently owned and operated and is not dominant

in its field, unless an agency establishes, after

opportunity for public comment, one or more

definitions of such term which are appropriate

to the activities of the agency and publishes

such definition(s) in the Federal Register;

(5) the term "small governmental jurisdiction" means governments of cities, counties,

towns, townships, villages, school districts, or

special districts, with a population of less

than fifty thousand, unless an agency estabPage 795 § 601
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lishes, after opportunity for public comment,

one or more definitions of such term which are

appropriate to the activities of the agency and

which are based on such factors as location in

rural or sparsely populated areas or limited

revenues due to the population of such jurisdiction, and publishes such definition(s) in the

Federal Register;

(6) the term "small entity" shall have the

same meaning as the terms "small business",

"small organization" and "small governmental jurisdiction" defined in paragraphs (3),

(4) and (5) of this section; and

(7) the term "collection of information"-

(A) means the obtaining, causing to be obtained, soliciting, or requiring the disclosure

to third parties or the public, of facts or

opinions by or for an agency, regardless of

form or format, calling for either-

(i) answers to identical questions posed

to, or identical reporting or recordkeeping

requirements imposed on, 10 or more persons, other than agencies, instrumentalities, or employees of the United States; or

(ii) answers to questions posed to agencies, instrumentalities, or employees of

the United States which are to be used for

general statistical purposes; and

(B) shall not include a collection of information described under section 3518(c)(1) of

title 44, United States Code.

(8) RECORDKEEPING REQUIREMENT.-The term

"recordkeeping requirement" means a requirement imposed by an agency on persons to

maintain specified records.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1165; amended Pub. L. 104-121, title II,

§241(a)(2), Mar. 29, 1996, 110 Stat. 864.)

REFERENCES IN TEXT

Section 3 of the Small Business Act, referred to in

par. (3), is classified to section 632 of Title 15, Commerce and Trade.

AMENDMENTS

1996--Pars. (7), (8). Pub. L. 104-121 added pars. (7) and

(8).

EFFECTIVE DATE OF 1996 AMENDMENT

Pub. L. 104-121, title II, §245, Mar. 29, 1996, 110 Stat.

868, provided that: "This subtitle [subtitle D (§§241-245)

of title II of Pub. L. 104-121, amending this section and

sections 603 to 605, 609, 611, and 612 of this title and enacting provisions set out as a note under section 609 of

this title] shall become effective on the expiration of 90

days after the date of enactment of this subtitle [Mar.

29, 1996], except that such amendments shall not apply

to interpretative rules for which a notice of proposed

rulemaking was published prior to the date of enactment."

EFFECTIVE DATE

Pub. L. 96-354, §4, Sept. 19, 1980, 94 Stat. 1170, provided

that: "The provisions of this Act [enacting this chapter] shall take effect January 1, 1981, except that the

requirements of sections 603 and 604 of title 5, United

States Code (as added by section 3 of this Act) shall

apply only to rules for which a notice of proposed rulemaking is issued on or after January 1, 1981."

SHORT TITLE OF 1996 AMENDMENT

Pub. L. 104-121, §1, Mar. 29, 1996, 110 Stat. 847, provided that: "This Act [enacting sections 801 to 808 of

this title, section 657 of Title 15, Commerce and Trade,

and sections 1320b-15 and 1383e of Title 42, The Public

Health and Welfare, amending this section and sections

504, 603 to 605, 609, 611, and 612 of this title, sections 665e

and 901 of Title 2, The Congress, section 648 of Title 15,

section 2412 of Title 28, Judiciary and Judicial Procedure, section 3101 of Title 31, Money and Finance, and

sections 401, 402, 403, 405, 422, 423, 425, 902, 903, 1382,

1382c, 1383, and 1383c of Title 42, enacting provisions set

out as notes under this section and sections 504, 609,

and 801 of this title and sections 401, 402, 403, 405, 902,

1305, 1320b-15, and 1382 of Title 42, amending provisions

set out as a note under section 631 of Title 15, and repealing provisions set out as a note under section 425 of

Title 42] may be cited as the 'Contract with America

Advancement Act of 1996'."

SHORT TITLE

Pub. L. 96-354, §1, Sept. 19, 1980, 94 Stat. 1164, provided: "That this Act [enacting this chapter] may be

cited as the 'Regulatory Flexibility Act'."

REGULATORY ENFORCEMENT REPORTS

Pub. L. 107-198, §4, June 28, 2002, 116 Stat. 732, provided that:

"(a) DEF=JIION.-In this section, the term 'agency'

has the meaning given that term under section 551 of

title 5, United States Code.

"(b) IN GENERAL.-

"(1) INITIAL REPORT.-Not later than December 31,

2003, each agency shall submit an initial report to-

"(A) the chairpersons and ranking minority members of-

"(i) the Committee on Governmental Affairs

[now Committee on Homeland Security and Governmental Affairs] and the Committee on Small

Business and Entrepreneurship of the Senate; and

"(ii) the Committee on Government Reform

[now Committee on Oversight and Government

Reform] and the Committee on Small Business of

the House of Representatives; and

"(B) the Small Business and Agriculture Regulatory Enforcement Ombudsman designated under

section 30(b) of the Small Business Act (15 U.S.C.

657(b)).

"(2) FINAL REPORT.-Not later than December 31,

2004, each agency shall submit a final report to the

members and officer described under paragraph (1)

(A) and (B).

"(3) CONTENT.-The initial report under paragraph

(1) shall include information with respect to the 1-

year period beginning on October 1, 2002, and the final

report under paragraph (2) shall include information

with respect to the 1-year period beginning on October 1, 2003, on each of the following:

"(A) The number of enforcement actions in which

a civil penalty is assessed.

"(B) The number of enforcement actions in which

a civil penalty is assessed against a small entity.

"(C) The number of enforcement actions described under subparagraphs (A) and (B) in which

the civil penalty is reduced or waived.

"(D) The total monetary amount of the reductions or waivers referred to under subparagraph (C).

"(4) DEFINITIONS IN REPORTS.-Each report under

this subsection shall include definitions selected at

the discretion of the reporting agency of the terms

'enforcement actions', 'reduction or waiver', and

'small entity' as used in the report."

ASSESSMENT OF FEDERAL REGULATIONS AND POLICIES

ON FAMILIES

Pub. L. 105-277, div. A, §101(h) [title VI, §654], Oct. 21,

1998, 112 Stat. 2681-480, 2681-528, as amended by Pub. L.

108-271, §8(b), July 7, 2004, 118 Stat. 814, provided that:

"(a) PURPOSES.-The purposes of this section are to-

"(1) require agencies to assess the impact of proposed agency actions on family well-being; and

"(2) improve the management of executive branch

agencies.

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TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

"(b) DEFINITIONS.-In this section-

"(1) the term 'agency' has the meaning given the

term 'Executive agency' by section 105 of title 5,

United States Code, except such term does not include the Government Accountability Office; and

"(2) the term 'family' means-

"(A) a group of individuals related by blood, marriage, adoption, or other legal custody who live together as a single household; and

"(B) any individual who is not a member of such

group, but who is related by blood, marriage, or

adoption to a member of such group, and over half

of whose support in a calendar year is received from

such group.

"(C) FAMILY POLICYMAKING ASSESSMENT.-Before implementing policies and regulations that may affect

family well-being, each agency shall assess such actions with respect to whether-

"(1) the action strengthens or erodes the stability

or safety of the family and, particularly, the marital

commitment;

"(2) the action strengthens or erodes the authority

and rights of parents in the education, nurture, and

supervision of their children;

"(3) the action helps the family perform its functions, or substitutes governmental activity for the

function;

"(4) the action increases or decreases disposable income or poverty of families and children;

"(5) the proposed benefits of the action justify the

financial impact on the family;

"(6) the action may be carried out by State or local

government or by the family; and

"(7) the action establishes an implicit or explicit

policy concerning the relationship between the behavior and personal responsibility of youth, and the

norms of society.

"(d) GOVERNMENTWIDE FAMILY POLICY COORDINATION

AND REVIEW.-

"(1) CERTIFICATION AND RATIONALE.-With respect to

each proposed policy or regulation that may affect

family well-being, the head of each agency shall-

"(A) submit a written certification to the Director of the Office of Management and Budget and to

Congress that such policy or regulation has been

assessed in accordance with this section; and

"(B) provide an adequate rationale for implementation of each policy or regulation that may negatively affect family well-being.

"(2) OFFICE OF MANAGEMENT AND BUDGET.-The Director of the Office of Management and Budget

shall-

"(A) ensure that policies and regulations proposed by agencies are implemented consistent with

this section; and

"(B) compile, index, and submit annually to the

Congress the written certifications received pursuant to paragraph (1)(A).

"(3) OFFICE OF POLICY DEVELOPMENT.-The Office of

Policy Development shall-

"(A) assess proposed policies and regulations in

accordance with this section;

"(B) provide evaluations of policies and regulations that may affect family well-being to the Director of the Office of Management and Budget; and

"(C) advise the President on policy and regulatory actions that may be taken to strengthen the

institutions of marriage and family in the United

States.

"(e) ASSESSMENTS UPON REQUEST BY MEMBERS OF

CONGRESS.-Upon request by a Member of Congress relating to a proposed policy or regulation, an agency

shall conduct an assessment in accordance with subsection (c), and shall provide a certification and rationale in accordance with subsection (d).

"(f) JUDICIAL REVIEW.-This section is not intended to create any right or benefit, substantive or procedural,

enforceable at law by a party against the United

States, its agencies, its officers, or any person."

SMALL BUSINESS REGULATORY FAIRNESS

Pub. L. 104-121, title II, §§201-224, Mar. 29, 1996, 110

Stat. 857-862, as amended by Pub. L. 110-28, title VIII,

§8302, May 25, 2007, 121 Stat. 204, provided that:

"SEC. 201. SHORT TITLE.

"This title [enacting sections 801 to 808 of this title

and section 657 of Title 15, Commerce and Trade,

amending this section, sections 504, 603 to 605, 609, 611,

and 612 of this title, section 648 of Title 15, and section

2412 of Title 28, Judiciary and Judicial Procedure, enacting provisions set out as notes under this section

and sections 504, 609, and 801 of this title, and amending

provisions set out as a note under section 631 of Title

15] may be cited as the 'Small Business Regulatory Enforcement Fairness Act of 1996'.

"SEC. 202. FINDINGS.

"Congress finds that-

"(1) a vibrant and growing small business sector is

critical to creating jobs in a dynamic economy;

"(2) small businesses bear a disproportionate share

of regulatory costs and burdens;

"(3) fundamental changes that are needed in the

regulatory and enforcement culture of Federal agencies to make agencies more responsive to small business can be made without compromising the statutory missions of the agencies;

"(4) three of the top recommendations of the 1995

White House Conference on Small Business involve

reforms to the way government regulations are developed and enforced, and reductions in government paperwork requirements;

"(5) the requirements of chapter 6 of title 5, United

States Code, have too often been ignored by government agencies, resulting in greater regulatory burdens on small entities than necessitated by statute;

and

"(6) small entities should be given the opportunity

to seek judicial review of agency actions required by

chapter 6 of title 5, United States Code.

"SEC. 203. PURPOSES.

"The purposes of this title are-

"(1) to implement certain recommendations of the

1995 White House Conference on Small Business re- garding the development and enforcement of Federal

regulations;

"(2) to provide for judicial review of chapter 6 of

title 5, United States Code;

"(3) to encourage the effective participation of

small businesses in the Federal regulatory process;

"(4) to simplify the language of Federal regulations

affecting small businesses;

"(5) to develop more accessible sources of information on regulatory and reporting requirements for

small businesses;

"(6) to create a more cooperative regulatory envi- ronment among agencies and small businesses that is

less punitive and more solution-oriented; and

"(7) to make Federal regulators more accountable

for their enforcement actions by providing small entities with a meaningful opportunity for redress of

excessive enforcement activities.

"SUBTITLE A-REGULATORY COMPLIANCE SIMPLIFICATION

"SEC. 211. DEFINITIONS.

"For purposes of this subtitle-

"(1) the terms 'rule' and 'small entity' have the

same meanings as in section 601 of title 5, United

States Code;

"(2) the term 'agency' has the same meaning as in

section 551 of title 5, United States Code; and

"(3) the term 'small entity compliance guide'

means a document designated and entitled as such by

an agency.

"SEC. 212. COMPLIANCE GUIDES.

"(a) COMPLIANCE GUIDE.-

"(1) IN GENERAL-For each rule or group of related

rules for which an agency is required to prepare a

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final regulatory flexibility analysis under section

605(b) [probably should be "section 604"] of title 5,

United States Code, the agency shall publish 1 or

more guides to assist small entities in complying

with the rule and shall entitle such publications

6small entity compliance guides'.

"(2) PUBLICATION OF GUIDES.-The publication of

each guide under this subsection shall include-

"(A) the posting of the guide in an easily identified location on the website of the agency; and

"(B) distribution of the guide to known industry

contacts, such as small entities, associations, or industry leaders affected by the rule.

"(3) PUBLICATION DATE.-An agency shall publish

each guide (including the posting and distribution of

the guide as described under paragraph (2))-

"(A) on the same date as the date of publication

of the final rule (or as soon as possible after that

date); and

"(B) not later than the date on which the requirements of that rule become effective.

"(4) COMPLIANCE ACTIONS.-

"(A) IN GENERAL.-Each guide shall explain the

actions a small entity is required to take to comply

with a rule.

"(B) EXPLANATION.-The explanation under subparagraph (A)-

"(i) shall include a description of actions needed to meet the requirements of a rule, to enable

a small entity to know when such requirements

are met; and

"(ii) if determined appropriate by the agency,

may include a description of possible procedures,

such as conducting tests, that may assist a small

entity in meeting such requirements, except that,

compliance with any procedures described pursuant to this section does not establish compliance

with the rule, or establish a presumption or inference of such compliance.

"(C) PROCEDURES.-Procedures described under

subparagraph (B)(ii)-

"(i) shall be suggestions to assist small entities;

and

"(ii) shall not be additional requirements, or diminish requirements, relating to the rule.

"(5) AGENCY PREPARATION OF GUIDES.-The agency

shall, in its sole discretion, taking into account the

subject matter of the rule and the language of relevant statutes, ensure that the guide is written using

sufficiently plain language likely to be understood by

affected small entities. Agencies may prepare separate guides covering groups or classes of similarly affected small entities and may cooperate with associations of small entities to develop and distribute such

guides. An agency may prepare guides and apply this

section with respect to a rule or a group of related

rules.

"(6) REPORTING.-Not later than 1 year after the

date of enactment of the Fair Minimum Wage Act of

2007 [May 25, 2007], and annually thereafter, the head

of each agency shall submit a report to the Committee on Small Business and Entrepreneurship of the

Senate, the Committee on Small Business of the

House of Representatives, and any other committee

of relevant jurisdiction describing the status of the

agency's compliance with paragraphs (1) through (5).

"(b) COMPREHENSIVE SOURCE OF INFORMATION.-Agencies shall cooperate to make available to small entities

through comprehensive sources of information, the

small entity compliance guides and all other available

information on statutory and regulatory requirements

affecting small entities.

"(c) LIMITATION ON JUDICIAL REVIEW.-An agency's

small entity compliance guide shall not be subject to

judicial review, except that in any civil or administrative action against a small entity for a violation occurring after the effective date of this section, the content

of the small entity compliance guide may be considered

as evidence of the reasonableness or appropriateness of

any proposed fines, penalties or damages.

"SEC. 213. INFORMAL SMALL ENTITY GUIDANCE.

"(a) GENERAL.-Whenever appropriate in the interest

of administering statutes and regulations within the

jurisdiction of an agency which regulates small entities, it shall be the practice of the agency to answer inquiries by small entities concerning information on,

and advice about, compliance with such statutes and

regulations, interpreting and applying the law to specific sets of facts supplied by the small entity. In any

civil or administrative action against a small entity,

guidance given by an agency applying the law to facts

provided by the small entity may be considered as evidence of the reasonableness or appropriateness of any

proposed fines, penalties or damages sought against

such small entity.

"(b) PROGRAM.-Each agency regulating the activities

of small entities shall establish a program for responding to such inquiries no later than 1 year after enactment of this section [Mar. 29, 1996], utilizing existing

functions and personnel of the agency to the extent

practicable.

"(c) REPORTING.-Each agency regulating the activities of small business shall report to the Committee on

Small Business [now Committee on Small Business and

Entrepreneurship) and Committee on Governmental Affairs [now Committee on Homeland Security and Governmental Affairs] of the Senate and the Committee on

Small Business and Committee on the Judiciary of the

House of Representatives no later than 2 years after

the date of the enactment of this section on the scope

of the agency's program, the number of small entities

using the program, and the achievements of the program to assist small entity compliance with agency

regulations.

"SEC. 214. SERVICES OF SMALL BUSINESS DEVELOPMENT CENTERS.

"(a) [Amended section 648 of Title 15, Commerce and

Trade.]

"(b) Nothing in this Act [see Short Title of 1996

Amendment note, above] in any way affects or limits

the ability of other technical assistance or extension

programs to perform or continue to perform services

related to compliance assistance.

"SEC. 215. COOPERATION ON GUIDANCE.

"Agencies may, to the extent resources are available

and where appropriate, in cooperation with the States,

develop guides that fully integrate requirements of

both Federal and State regulations where regulations

within an agency's area of interest at the Federal and

State levels impact small entities. Where regulations

vary among the States, separate guides may be created

for separate States in cooperation with State agencies.

"SEC. 216. EFFECTIVE DATE.

"This subtitle and the amendments made by this subtitle shall take effect on the expiration of 90 days after

the date of enactment of this subtitle [Mar. 29, 1996].

"SUBTITLE B-REGULATORY ENFORCEMENT REFORMS

"SEC. 221. DEFINITIONS.

"For purposes of this subtitle-

"(1) the terms 'rule' and 'small entity' have the

same meanings as in section 601 of title 5, United

States Code;

"(2) the term 'agency' has the same meaning as in

section 551 of title 5, United States Code; and

"(3) the term 'small entity compliance guide'

means a document designated as such by an agency.

"SEC. 222. SMALL BUSINESS AND AGRICULTURE

ENFORCEMENT OMBUDSMAN.

"[Enacted section 657 of Title 15, Commerce and

Trade.]

"SEC. 223. RIGHTS OF SMALL ENTITIES IN ENFORCEMENT ACTIONS.

"(a) IN GENERAL.-Each agency regulating the activities of small entities shall establish a policy or program within 1 year of enactment of this section [Mar.

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29, 1996] to provide for the reduction, and under appropriate circumstances for the waiver, of civil penalties

for violations of a statutory or regulatory requirement

by a small entity. Under appropriate circumstances, an

agency may consider ability to pay in determining penalty assessments on small entities.

"(b) CONDITIONS AND EXCLUSIONS.-Subject to the requirements or limitations of other statutes, policies or

programs established under this section shall contain

conditions or exclusions which may include, but shall

not be limited to-

"(1) requiring the small entity to correct the violation within a reasonable correction period;

"(2) limiting the applicability to violations discovered through participation by the small entity in a

compliance assistance or audit program operated or

supported by the agency or a State;

"(3) excluding small entities that have been subject

to multiple enforcement actions by the agency;

"(4) excluding violations involving willful or criminal conduct;

"(5) excluding violations that pose serious health,

safety or environmental threats; and

"(6) requiring a good faith effort to comply with the

law.

"(c) REPORTING.-Agencies shall report to the Committee on Small Business [now Committee on Small

Business and Entrepreneurship] and Committee on

Governmental Affairs [now Committee on Homeland

Security and Governmental Affairs] of the Senate and

the Committee on Small Business and Committee on

Judiciary of the House of Representatives no later than

2 years after the date of enactment of this section

[Mar. 29, 1996] on the scope of their program or policy,

the number of enforcement actions against small entities that qualified or failed to qualify for the program

or policy, and the total amount of penalty reductions

and waivers.

"SEC. 224. EFFECTIVE DATE.

"This subtitle and the amendments made by this subtitle shall take effect on the expiration of 90 days after

the date of enactment of this subtitle [Mar. 29, 1996]."

EFFECTS OF DEREGULATION ON RURAL AMERICA

Pub. L. 101-574, title III, §309, Nov. 15, 1990, 104 Stat.

2831, provided that:

"(a) STUDY.-The Office of Technology Assessment

shall conduct a study of the effects of deregulation on

the economic vitality of rural areas. Such study shall

include, but not be limited to, a thorough analysis of

the impact of deregulation on-

"(1) the number of loans made by financial institutions to small businesses located in rural areas, a

change in the level of security interests required for

such loans, and the cost of such loans to rural small

businesses for creation and expansion;

"(2) airline service in cities and towns with populations of 100,000 or less, including airline fare, the

number of flights available, number of seats available, scheduling of flights, continuity of service,

number of markets being served by large and small

airlines, availability of nonstop service, availability

of direct service, number of economic cancellations,

number of flight delays, the types of airplanes used,

and time delays;

"(3) the availability and costs of bus, rail and

trucking transportation for businesses located in

rural areas;

"(4) the availability and costs of state-of-the-art

telecommunications services to small businesses located in rural areas, including voice telephone service, private (not multiparty) telephone service, reliable facsimile document and data transmission, competitive long distance carriers, cellular (mobile) telephone service, multifrequency tone signaling services

such as touchtone services, custom-calling services

(including three-way calling, call forwarding, and call

waiting), voicemail services, and 911 emergency services with automatic number identification;

"(5) the availability and costs to rural schools, hospitals, and other public facilities, of sending and receiving audio and visual signals in cases where such

ability will enhance the quality of services provided

to rural residents and businesses; and

"(6) the availability and costs of services enumerated in paragraphs (1) through (5) in urban areas compared to rural areas.

"(b) REPORT.-Not later than 12 months after the date

of enactment of this title [Nov. 15, 1990], the Office of

Technology Assessment shall transmit to Congress a

report on the results of the study conducted under subsection (a) together with its recommendations on how

to address the problems facing small businesses in rural

areas."

CONGRESSIONAL FINDINGS AND DECLARATION OF

PURPOSE

Section 2 of Pub. L. 96-354 provided that:

"(a) The Congress finds and declares that-

"(1) when adopting regulations to protect the

health, safety and economic welfare of the Nation,

Federal agencies should seek to achieve statutory

goals as effectively and efficiently as possible without imposing unnecessary burdens on the public;

"(2) laws and regulations designed for application

to large scale entities have been applied uniformly to

small businesses, small organizations, and small governmental jurisdictions even though the problems

that gave rise to government action may not have

been caused by those smaller entities;

"(3) uniform Federal regulatory and reporting requirements have in numerous instances imposed unnecessary and disproportionately burdensome demands including legal, accounting and consulting

costs upon small businesses, small organizations, and

small governmental jurisdictions with limited resources;

"(4) the failure to recognize differences in the scale

and resources of regulated entities has in numerous

instances adversely affected competition in the marketplace, discouraged innovation and restricted improvements in productivity;

"(5) unnecessary regulations create entry barriers

in many industries and discourage potential entrepreneurs from introducing beneficial products and

processes;

"(6) the practice of treating all regulated businesses, organizations, and governmental jurisdictions

as equivalent may lead to inefficient use of regulatory agency resources, enforcement problems, and,

in some cases, to actions inconsistent with the legislative intent of health, safety, environmental and

economic welfare legislation;

"(7) alternative regulatory approaches which do not

conflict with the stated objectives of applicable statutes may be available which minimize the significant

economic impact of rules on small businesses, small

organizations, and small governmental jurisdictions;

"(8) the process by which Federal regulations are

developed and adopted should be reformed to require

agencies to solicit the ideas and comments of small

businesses, small organizations, and small governmental jurisdictions to examine the impact of proposed and existing rules on such entities, and to review the continued need for existing rules.

"(b) It is the purpose of this Act [enacting this chapter] to establish as a principle of regulatory issuance

that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of

the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider

flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are

given serious consideration."

EXECUTIVE ORDER No. 12291

Ex. Ord. No. 12291, Feb. 17, 1981, 46 F.R. 13193, which

established requirements for agencies to follow in proPage 799
§ 601 TITLE 5--GOVERNMENT ORG

mulgating regulations, reviewing existing regulations,

and developing legislative proposals concerning regulation, was revoked by Ex. Ord. No. 12866, §11, Sept. 30,

1993, 58 F.R. 51735, set out below.

EXECUTIVE ORDER No. 12498

Ex. Ord. No. 12498, Jan. 4, 1985, 50 F.R. 1036, which established a regulatory planning process by which to develop and publish a regulatory program for each year,

was revoked by Ex. Ord. No. 12866, § 11, Sept. 30, 1993, 58

F.R. 51735, set out below.

EXECUTIVE ORDER No. 12606

Ex. Ord. No. 12606, Sept. 2, 1987, 52 F.R. 34188, which

provided criteria for executive departments and agencies to follow in making policies and regulations to ensure consideration of effect of those policies and regulations on autonomy and rights of the family, was revoked by Ex. Ord. No. 13045, §7, Apr. 21, 1997, 62 F.R.

19888, set out as a note under section 4321 of Title 42,

The Public Health and Welfare.

EXECUTIVE ORDER No. 12612

Ex. Ord. No. 12612, Oct. 26, 1987, 52 F.R. 41685, which

set out fundamental federalism principles and policymaking criteria for executive departments and agencies to follow in formulating and implementing policies

and limited the instances when executive departments

and agencies could construe a Federal statute to preempt State law, was revoked by Ex. Ord. No. 13132,

§ 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

Ex. ORD. No. 12630. GOVERNMENTAL ACTIONS AND INTERFERENCE WITH CONSTITUTIONALLY PROTECTED PROPERTY RIGHTS

Ex. Ord. No. 12630, Mar. 15, 1988, 53 F.R. 8859, provided:

By the authority vested in me as President by the

Constitution and laws of the United States of America,

and in order to ensure that government actions are

undertaken on a well-reasoned basis with due regard

for fiscal accountability, for the financial impact of the

obligations imposed on the Federal government by the

Just Compensation Clause of the Fifth Amendment,

and for the Constitution, it is hereby ordered as follows:

SECTION 1. Purpose. (a) The Fifth Amendment of the

United States Constitution provides that private property shall not be taken for public use without just compensation. Government historically has used the formal

exercise of the power of eminent domain, which provides orderly processes for paying just compensation,

to acquire. private property for public use. Recent Supreme Court decisions, however, in reaffirming the fundamental protection of private property rights provided by the Fifth Amendment and in assessing the nature of governmental actions that have an impact on

constitutionally protected property rights, have also

reaffirmed that governmental actions that do not formally invoke the condemnation power, including regulations, may result in a taking for which just compensation is required.

(b) Responsible fiscal management and fundamental

principles of good government require that government

decision-makers evaluate carefully the effect of their

administrative, regulatory, and legislative actions on

constitutionally protected property rights. Executive

departments and agencies should review their actions

carefully to prevent unnecessary takings and should

account in decision-making for those takings that are

necessitated by statutory mandate.

(c) The purpose of this Order is to assist Federal departments and agencies in undertaking such reviews

and in proposing, planning, and implementing actions

with due regard for the constitutional protections provided by the Fifth Amendment and to reduce the risk

of undue or inadvertent burdens on the public fisc resulting from lawful governmental action. In further- ance of the purpose of this Order, the Attorney General

shall, consistent with the principles stated herein and

ANIZATION AND EMPLOYEES

in consultation with the Executive departments and

agencies, promulgate Guidelines for the Evaluation of

Risk and Avoidance of Unanticipated Takings to which

each Executive department or agency shall refer in

making the evaluations required by this Order or in

otherwise taking any action that is the subject of this

Order. The Guidelines shall be promulgated no later

than May 1, 1988, and shall be disseminated to all units

of each Executive department and agency no later than

July 1, 1988. The Attorney General shall, as necessary,

update these guidelines to reflect fundamental changes

in takings law occurring as a result of Supreme Court

decisions.

SEC. 2. Definitions. For the purpose of this Order: (a)

"Policies that have takings implications" refers to

Federal regulations, proposed Federal regulations, proposed Federal legislation, comments on proposed Federal legislation, or other Federal policy statements

that, if implemented or enacted, could effect a taking,

such as rules and regulations that propose or implement licensing, permitting, or other condition requirements or limitations on private property use, or that

require dedications or exactions from owners of private

property. "Policies that have takings implications"

does not include:

(1) Actions abolishing regulations, discontinuing governmental programs, or modifying regulations in a

manner that lessens interference with the use of private property;

(2) Actions taken with respect to properties held in

trust by the United States or in preparation for or during treaty negotiations with foreign nations;

(3) Law enforcement actions involving seizure, for

violations of law, of property for forfeiture or as evidence in criminal proceedings;

(4) Studies or similar efforts or planning activities;

(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether

such communications are initiated by a Federal agency

or department or are undertaken in response to an invitation by the State or local authority;

(6) The placement of military facilities or military

activities involving the use of Federal property alone;

or

(7) Any military or foreign affairs functions (including procurement functions thereunder) but not including the U.S. Army Corps of Engineers civil works program.

(b) Private property refers to all property protected

by the Just Compensation Clause of the Fifth Amendment.

(c) "Actions" refers to proposed Federal regulations,

proposed Federal legislation, comments on proposed

Federal legislation, applications of Federal regulations

to specific property, or Federal governmental actions

physically invading or occupying private property, or

other policy statements or actions related to Federal

regulation or direct physical invasion or occupancy,

but does not include:

(1) Actions in which the power of eminent domain is

formally exercised;

(2) Actions taken with respect to properties held in

trust by the United States or in preparation for or during treaty negotiations with foreign nations;

(3) Law enforcement actions involving seizure, for

violations of law, of property for forfeiture or as evidence in criminal proceedings;

(4) Studies or similar efforts or planning activities;

(5) Communications between Federal agencies or departments and State or local land-use planning agencies regarding planned or proposed State or local actions regulating private property regardless of whether

such communications are initiated by a Federal agency

or department or are undertaken in response to an invitation by the State or local authority;

(6) The placement of military facilities or military

activities involving the use of Federal property alone;

or

Page 800
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(7) Any military or foreign affairs functions (including procurement functions thereunder), but not including the U.S. Army Corps of Engineers civil works program.

SEC. 3. General Principles. In formulating or implementing policies that have takings implications, each

Executive department and agency shall be guided by

the following general principles:

(a) Governmental officials should be sensitive to, anticipate, and account for, the obligations imposed by

the Just Compensation Clause of the Fifth Amendment

in planning and carrying out governmental actions so

that they do not result in the imposition of unanticipated or undue additional burdens on the public fisc.

(b) Actions undertaken by governmental officials

that result in a physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use, may constitute a taking of property. Further, governmental action may amount to a taking even though the action

results in less than a complete deprivation of all use or

value, or of all separate and distinct interests in the

same private property and even if the action constituting a taking is temporary in nature.

(c) Government officials whose actions are taken specifically for purposes of protecting public health and

safety are ordinarily given broader latitude by courts

before their actions are considered to be takings. However, the mere assertion of a public health and safety

purpose is insufficient to avoid a taking. Actions to which this Order applies asserted to be for the protection of public health and safety, therefore, should be

undertaken only in response to real and substantial

threats to public health and safety, be designed to advance significantly the health and safety purpose, and

be no greater than is necessary to achieve the health

and safety purpose.

(d) While normal governmental processes do not ordinarily effect takings, undue delays in decision-making

during which private property use if interfered with

carry a risk of being held to be takings. Additionally,

a delay in processing may increase significantly the

size of compensation due if a taking is later found to

have occurred.

(e) The Just Compensation Clause is self-actuating,

requiring that compensation be paid whenever governmental action results in a taking of private property

regardless of whether the underlying authority for the

action contemplated a taking or authorized the payment of compensation. Accordingly, governmental actions that may have a significant impact on the use or

value of private property should be scrutinized to avoid

undue or unplanned burdens on the public fisc.

SEC. 4. Department and Agency Action. In addition to

the fundamental principles set forth in Section 3, Executive departments and agencies shall adhere, to the extent permitted by law, to the following criteria when

implementing policies that have takings implications:

(a) When an Executive department or agency requires

a private party to obtain a permit in order to undertake a specific use of, or action with respect to, private

property, any conditions imposed on the granting of a

permit shall:

(1) Serve the same purpose that would have been

served by a prohibition of the use or action; and

(2) Substantially advance that purpose.

(b) When a proposed action would place a restriction

on a use of private property, the restriction imposed on

the use shall not be disproportionate to the extent to

which the use contributes to the overall problem that

the restriction is imposed to redress.

(c) When a proposed action involves a permitting

process or any other decision-making process that will

interfere with, or otherwise prohibit, the use of private

property pending the completion of the process, the duration of the process shall be kept to the minimum necessary.

(d) Before undertaking any proposed action regulating private property use for the protection of public

health or safety, the Executive department or agency

involved shall, in internal deliberative documents and

any submissions to the Director of the Office- of Management and Budget that are required:

(1) Identify clearly, with as much specificity as possible, the public health or safety risk created by the

private property use that is the subject of the proposed

action;

(2) Establish that such proposed action substantially

advances the purpose of protecting public health and

safety against the specifically identified risk;

(3) Establish to the extent possible that the restrictions imposed on the private property are not disproportionate to the extent to which the use contributes to the overall risk; and

(4) Estimate, to the extent possible, the potential

cost to the government in the event that a court later

determines that the action constituted a taking.

In instances in which there is an immediate threat to health and safety that constitutes an emergency requiring immediate response, this analysis may be done

upon completion of the emergency action.

SEC. 5. Executive Department and Agency Implementation. (a) The head of each Executive department and

agency shall designate an official to be responsible for

ensuring compliance with this Order with respect to the actions of the department or agency.

(b) Executive departments and agencies shall, to the extent permitted by law, identify the takings implications of proposed regulatory actions and address the

merits of those actions in light of the identified takings implications, if any, in all required submissions

made to the Office of Management and Budget. Significant takings implications should also be identified and

discussed in notices of proposed rule-making and mes- sages transmitting legislative proposals to the Congress stating the departments' and agencies' conclusions on the takings issues.

(c) Executive departments and agencies shall identify

each existing Federal rule and regulation against which

a takings award has been made or against which a takings claim is pending including the amount of each

claim or award. A "takings" award has been made or a "takings" claim pending if the award was made, or the

pending claim brought, pursuant to the Just Compensation Clause of the Fifth Amendment. An itemized com- pilation of all such awards made in Fiscal Years 1985,

1986, and 1987 and all such pending claims shall be submitted to the Director, Office of Management and

Budget, on or before May 16, 1988.

(d) Each Executive department and agency shall submit annually to the Director, Office of Management

and Budget, and to the Attorney General an itemized

compilation of all awards of just compensation entered

against the United States for takings, including awards

of interest as well as monies paid pursuant to the provisions of the Uniform Relocation Assistance and Real

Property Acquisition Policies Act of 1970, 42 U.S.C.

4601.

(e)(1) The Director, Office of Management and Budget, and the Attorney General shall each, to the extent

permitted by law, take action to ensure that the policies of the Executive departments and agencies are

consistent with the principles, criteria, and requirements stated in Sections 1 through 5 of this Order, and

the Office of Management and Budget shall take action

to ensure that all takings awards levied against agencies are properly accounted for in agency budget submissions.

(2) In addition to the guidelines required by Section

1 of this Order, the Attorney General shall, in consultation with each Executive department and agency to

which this Order applies, promulgate such supplemental guidelines as may be appropriate to the specific

obligations of that department or agency.

SEC. 6. Judicial Review. This Order is intended only to

improve the internal management of the Executive

branch and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a

party against the United States, its agencies, its officers, or any person.

RONALD REAGAN.

Page 801 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

Ex. ORD. No. 12861. ELIMINATION OF ONE-HALF OF

EXECUTIVE BRANCH INTERNAL REGULATIONS

Ex. Ord. No. 12861, Sept. 11, 1993, 58 F.R. 48255, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including section 301 of title 3, United States

Code, and section 1111 of title 31, United States Code,

and to cut 50 percent of the executive branch's internal

regulations in order to streamline and improve customer service to the American people, it is hereby ordered as follows:

SECTION 1. Regulatory Reductions. Each executive department and agency shall undertake to eliminate not

less than 50 percent of its civilian internal management regulations that are not required by law within 3

years of the effective date of this order. An agency internal management regulation, for the purposes of this

order, means an agency directive or regulation that

pertains to its organization, management, or personnel

matters. Reductions in agency internal management

regulations shall be concentrated in areas that will result in the greatest improvement in productivity,

streamlining of operations, and improvement in customer service.

SEC. 2. Coverage. This order applies to all executive

branch departments and agencies.

SEC. 3. Implementation. The Director of the Office of

Management and Budget shall issue instructions regarding the implementation of this order, including exemptions necessary for the delivery of essential services and compliance with applicable law.

SEC. 4. Independent Agencies. All independent regulatory commissions and agencies are requested to comply with the provisions of this order.

WILLIAM J. CLINTON.

Ex. ORD. NO. 12866. REGULATORY PLANNING AND REVIEW

Ex. Ord. No. 12866, Sept. 30, 1993, 58 F.R. 51735, as

amended by Ex. Ord. No. 13258, Feb. 26, 2002, 67 F.R.

9385; Ex. Ord. No. 13422, Jan. 18, 2007, 72 F.R. 2763; Ex.

Ord. No. 13497, §1, Jan. 30, 2009, 74 F.R. 6113, provided:

The American people deserve a regulatory system

that works for them, not against them: a regulatory

system that protects and improves their health, safety,

environment, and well-being and improves the performance of the economy without imposing unacceptable or

unreasonable costs on society; regulatory policies that

recognize that the private sector and private markets

are the best engine for economic growth; regulatory approaches that respect the role of State, local, and tribal

governments; and regulations that are effective, consistent, sensible, and understandable. We do not have

such a regulatory system today.

With this Executive order, the Federal Government

begins a program to reform and make more efficient

the regulatory process. The objectives of this Executive

order are to enhance planning and coordination with

respect to both new and existing regulations; to reaffirm the primacy of Federal agencies in the regulatory

decision-making process; to restore the integrity and

legitimacy of regulatory review and oversight; and to

make the process more accessible and open to the public. In pursuing these objectives, the regulatory process

shall be conducted so as to meet applicable statutory

requirements and with due regard to the discretion

that has been entrusted to the Federal agencies.

Accordingly, by the authority vested in me as President by the Constitutioi and the laws of the United

States of America, it is hereby ordered as follows:

SECTION 1. Statement of Regulatory Philosophy and

Principles.

(a) The Regulatory Philosophy. Federal agencies

should promulgate only such regulations as are required by law, are necessary to interpret the law, or are

made necessary by compelling public need, such as material failures of private markets to protect or improve

the health and safety of the public, the environment, or

the well-being of the American people. In deciding

whether and how to regulate, agencies should assess all

costs and benefits of available regulatory alternatives,

including the alternative of not regulating. Costs and

benefits shall be understood to include both quantifiable measures (to the fullest extent that these can be

usefully estimated) and qualitative measures of costs

and benefits that are difficult to quantify, but nevertheless essential to consider. Further, in choosing

among alternative regulatory approaches, agencies

should select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity), unless a statute requires another regulatory approach.

(b) The Principles of Regulation. To ensure that the

agencies' regulatory programs are consistent with the

philosophy set forth above, agencies should adhere to

the following principles, to the extent permitted by law

and where applicable:

(1) Each agency shall identify the problem that it

intends to address (including, where applicable, the

failures of private markets or public institutions that

warrant new agency action) as well as assess the significance of that problem.

(2) Each agency shall examine whether existing regulations (or other law) have created, or contributed

to, the problem that a new regulation is intended to

correct and whether those regulations (or other law)

should be modified to achieve the intended goal of

regulation more effectively.

(3) Each agency shall identify and assess available

alternatives to direct regulation, including providing

economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made

by the public.

(4) In setting regulatory priorities, each agency

shall consider, to the extent reasonable, the degree

and nature of the risks posed by various substances

or activities within its jurisdiction.

(5) When an agency determines that a regulation is

the best available method of achieving the regulatory

objective, it shall design its regulations in the most

cost-effective manner to achieve the regulatory objective. In doing so, each agency shall consider incentives for innovation, consistency, predictability, the

costs of enforcement and compliance (to the government, regulated entities, and the public), flexibility,

distributive impacts, and equity.

(6) Each agency shall assess both the costs and the

benefits of the intended regulation and, recognizing

that some costs and benefits are difficult to quantify,

propose or adopt a regulation only upon a reasoned

determination that the benefits of the intended regulation justify its costs.

(7) Each agency shall base its decisions on the best

reasonably obtainable scientific, technical, economic,

and other information concerning the need for, and

consequences of, the intended regulation.

(8) Each agency shall identify and assess alternative forms of regulation and shall, to the extent

feasible, specify performance objectives, rather than

specifying the behavior or manner of compliance that

regulated entities must adopt.

(9) Wherever feasible, agencies shall seek views of

appropriate State, local, and tribal officials before

imposing regulatory requirements that might significantly or uniquely affect those governmental entities. Each agency shall assess the effects of Federal

regulations on State, local, and tribal governments,

including specifically the availability of resources to

carry out those mandates, and seek to minimize

those burdens that uniquely or significantly affect

such governmental entities, consistent with achieving regulatory objectives. In addition, as appropriate,

agencies shall seek to harmonize Federal regulatory

actions with related State, local, and tribal regulatory and other governmental functions.

(10) Each agency shall avoid regulations that are

inconsistent, incompatible, or duplicative with its

other regulations or those of other Federal agencies.

Page 802
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(11) Each agency shall tailor its regulations to impose the least burden on society, including individuals, businesses of differing sizes, and other entities

(including small communities and governmental entities), consistent with obtaining the regulatory objectives, taking into account, among other things, and

to the extent practicable, the costs of cumulative

regulations.

(12) Each agency shall draft its regulations to be

simple and easy to understand, with the goal of minimizing the potential for uncertainty and litigation

arising from such uncertainty.

SEC. 2. Organization. An efficient regulatory planning

and review process is vital to ensure that the Federal

Government's regulatory system best serves the American people.

(a) The Agencies. Because Federal agencies are the repositories of significant substantive expertise and experience, they are responsible for developing regulations

and assuring that the regulations are consistent with

applicable law, the President's priorities, and the principles set forth in this Executive order.

(b) The Office of Management and Budget. Coordinated

review of agency rulemaking is necessary to ensure

that regulations are consistent with applicable law, the

President's priorities, and the principles set forth in

this Executive order, and that decisions made by one

agency do not conflict with the policies or actions

taken or planned by another agency. The Office of Management and Budget (OMB) shall carry out that review

function. Within OMB, the Office of Information and

Regulatory Affairs (OIRA) is the repository of expertise

concerning regulatory issues, including methodologies

and procedures that affect more than one agency, this

Executive order, and the President's regulatory policies. To the extent permitted by law, OMB shall provide guidance to agencies and assist the President, the

Vice President, and other regulatory policy advisors to

the President in regulatory planning and shall be the

entity that reviews individual regulations, as provided

-by this Executive order.

(c) The Vice President. The Vice President is the principal advisor to the President on, and shall coordin6te

the development and presentation of recommendations

concerning, regulatory policy, planning, and review, as

set forth in this Executive order. In fulfilling their responsibilities under this Executive order, the President

and the Vice President shall be assisted by the regulatory policy advisors within the Executive Office of

the President and by such agency officials and personnel as the President and the Vice President may, from

time to time, consult.

SEC. 3. Definitions. For purposes of this Executive

order: (a) "Advisors" refers to such regulatory policy

advisors to the President as the President and Vice

President may from time to time consult, including,

among others: (1) the Director of OMB; (2) the Chair (or

another member) of the Council of Economic Advisers;

(3) the Assistant to the President for Economic Policy;

(4) the Assistant to the President for Domestic Policy;

(5) the Assistant to the President for National Security

Affairs; (6) the Assistant to the President for Science

and Technology; (7) the Assistant to the President for

Intergovernmental Affairs; (8) the Assistant to the

President and Staff Secretary; (9) the Assistant to the

President and Chief of Staff to the Vice President; (10)

the Assistant to the President and Counsel to the

President; (11) the Deputy Assistant to the President

and Director of the White House Office on Environmental Policy; and (12) the Administrator of QIRA, who

also shall coordinate communications relating to this

Executive order among the agencies, OMB, the other

Advisors, and the Office of the Vice President.

(b) "Agency," unless otherwise indicated, means any

authority of the United States that is an "agency"

under 44 U.S.C. 3502(1), other than those considered to

be independent regulatory agencies, as defined in 44

U.S.C. 3502(10).

(c) "Director" means the Director of OMB.

(d) "Regulation" or "rule" means an agency statement of general applicability and future effect, which

the agency intends to have the force and effect of law,

that is designed to implement, interpret, or prescribe

law or policy or to describe the procedure or practice

requirements of an agency. It does not, however, include:

(1) Regulations or rules issued in accordance with

the formal rulemaking provisions of 5 U.S.C. 556, 557;

(2) Regulations or rules that pertain to a military

or foreign affairs function of the United States, other

than procurement regulations and regulations involving the import or export of non-defense articles and

services;

(3) Regulations or rules that are limited to agency

organization, management, or personnel matters; or (4) Any other category of regulations exempted by

the Administrator of OIRA.

(e) "Regulatory action" means any substantive action by an agency (normally published in the Federal

Register) that promulgates or is expected to lead to the

promulgation of a final rule or regulation, including

notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.

(f) "Significant regulatory action" means any regulatory action that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100

million or more or adversely affect in a material way

the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise

interfere with an action taken or planned by another

agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the

rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of

legal mandates, the President's priorities, or the

principles set forth in this Executive order.

SEC. 4. Planning Mechanism. In order to have an effective regulatory program, to provide for coordination of

regulations, to maximize consultation and the resolution of potential conflicts at an early stage, to involve

the public and its State, local, and tribal officials in

regulatory planning, and to ensure that new or revised

regulations promote the President's priorities and the

principles set forth in this Executive order, these procedures shall be followed, to the extent permitted by

law: (a) Agencies' Policy Meeting. Early in each year's

planning cycle, the Vice President shall convene a

meeting of the Advisors and the heads of agencies to

seek a common understanding of priorities and to coordinate regulatory efforts to be accomplished in the upcoming year.

(b) Unified Regulatory Agenda. For purposes of this

subsection, the term "agency" or "agencies" shall also

include those considered to be independent regulatory

agencies, as defined in 44 U.S.C. 3502(10). Each agency

shall prepare an agenda of all regulations under development or review, at a time and in a manner specified

by the Administrator of OIRA. The description of each

regulatory action shall contain, at a minimum, a regulation identifier number, a brief summary of the action, the legal authority for the action, any legal deadline for the action, and the name and telephone number

of a knowledgeable agency official. -Agencies may incorporate the information required under 5 U.S.C. 602

and (former] 41 U.S.C. 402 into these agendas.

(c) The Regulatory Plan. For purposes of this subsection, the term "agency" or "agencies" shall also include those considered to be independent regulatory

agencies, as defined in 44 U.S.C. 3502(10). (1) As part of

the Unified Regulatory Agenda, beginning in 1994, each

agency shall prepare a Regulatory Plan (Plan) of the

most important significant regulatory actions that the

agency reasonably expects to issue in proposed or final

form in that fiscal year or thereafter. The Plan shall be

approved personally by the agency head and shall contain at a minimum:

(A) A statement of the agency's regulatory objectives and priorities and how they relate to the President's priorities;

76-400 D Sig-29

Page 803 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(B) A summary of each planned significant regulatory action including, to the extent possible, alternatives to be considered and preliminary estimates of

the anticipated costs and benefits;

(C) A summary of the legal basis for each such action, including whether any aspect of the action is required by statute or court order;

(D) A statement of the need for each such action

and, if applicable, how the action will reduce risks to

public health, safety, or the environment, as well as

how the magnitude of the risk addressed by the action relates to other risks within the jurisdiction of

the agency;

(E) The agency's schedule for action, including a

statement of any applicable statutory or judicial

deadlines; and

(F) The name, address, and telephone number of a

person the public may contact for additional information about the planned regulatory action.

(2) Each agency shall forward its Plan to OIRA by

June 1st of each year.

(3) Within 10 calendar days after OIRA has received

an agency's Plan, OIRA shall circulate it to other affected agencies, the Advisors, and the Vice President.

(4) An agency head who believes that a planned regulatory action of another agency may conflict with its

own policy or action taken or planned shall promptly

notify, in writing, the Administrator of OIRA, who

shall forward that communication to the issuing agency, the Advisors, and the Vice President.

(5) If the Administrator of OIRA believes that a

planned regulatory action of an agency may be inconsistent with the President's priorities or the principles

set forth in this Executive order or may be in conflict

with any policy or action taken or planned by another

agency, the Administrator of OIRA shall promptly notify, in writing, the affected agencies, the Advisors, and

the Vice President.

(6) The Vice President, with the Advisors' assistance,

may consult with the heads of agencies with respect to

their Plans and, in appropriate instances, request further consideration or inter-agency coordination.

(7) The Plans developed by the issuing agency shall be

published annually in the October publication of the

Unified Regulatory Agenda. This publication shall be

made available to the Congress; State, local, and tribal

governments; and the public. Any views on any aspect

of any agency Plan, including whether any planned regulatory action might conflict with any other planned

or existing regulation, impose any unintended consequences on the public, or confer any unclaimed benefits

on the public, should be directed to the issuing agency,

with a copy to OIRA.

(d) Regulatory Working Group. Within 30 days of the

date of this Executive order, the Administrator of

OIRA shall convene a Regulatory Working Group

("Working Group"), which shall consist of representatives of the heads of each agency that the Administrator determines to have significant domestic regulatory responsibility, the Advisors, and the Vice President. The Administrator of OIRA shall chair the Working Group and shall periodically advise the Vice President on the activities of the Working Group. The Working Group shall serve as a forum to assist agencies in

identifying and analyzing important regulatory issues

(including, among others (1) the development of innovative regulatory techniques, (2) the methods, efficacy,

and utility of comparative risk assessment in regulatory decision-making, and (3) the development of

short forms and other streamlined regulatory approaches for small businesses and other entities). The

Working Group shall meet at least quarterly and may

meet as a whole or in subgroups of agencies with an interest in particular issues or subject areas. To inform

its discussions, the Working Group may commission

analytical studies and reports by OIRA, the Administrative Conference of the United States, or any other

agency.

(e) Conferences. The Administrator of OIRA shall

meet quarterly with representatives of State, local, and

tribal governments to identify both existing and proposed regulations that may uniquely or significantly

affect those governmental entities. The Administrator

of OIRA shall also convene, from time to time, conferences with representatives of businesses, nongovernmental organizations, and the public to discuss regulatory issues of common concern.

SEC. 5. Existing Regulations. In order to reduce the

regulatory burden on the American people, their families, their communities, their State, local, and tribal

governments, and their industries; to determine whether regulations promulgated by the executive branch of

the Federal Government have become unjustified or

unnecessary as a result of changed circumstances; to

confirm that regulations are both compatible with each

other and not duplicative or inappropriately burdensome in the aggregate; to ensure that all regulations

are consistent with the President's priorities and the

principles set forth in this Executive order, within applicable law; and to otherwise improve the effectiveness of existing regulations: (a) Within 90 days of the

date of this Executive order, each agency shall submit

to OIRA a program, consistent with its resources and

regulatory priorities, under which the agency will periodically review its existing significant regulations to

determine whether any such regulations should be

modified or eliminated so as to make the agency's regulatory program more effective in achieving the regulatory objectives, less burdensome, or in greater alignment with the President's priorities and the principles

set forth in this Executive order. Any significant regulations selected for review shall be included in the

agency's annual Plan. The agency shall also identify

any legislative mandates that require the agency to

promulgate or continue to impose regulations that the

agency believes are unnecessary or outdated by reason

of changed circumstances.

(b) The Administrator of OIRA shall work with the

Regulatory Working Group and other interested entities to pursue the objectives of this section. State,

local, and tribal governments are specifically encouraged to assist in the identification of regulations that

impose significant or unique burdens on those governmental entities and that appear to have outlived their

justification or be otherwise inconsistent with the public interest.

(c) The Vice President, in consultation with the Advisors, may identify for review by the appropriate agency

or agencies other existing regulations of an agency or

groups of regulations of more than one agency that affect a particular group, industry, or sector of the economy, or may identify legislative mandates that may be

appropriate for reconsideration by the Congress.

SEC. 6. Centralized Review of Regulations. The guidelines set forth below shall apply to all regulatory actions, for both new and existing regulations, by agencies other than those agencies specifically exempted by

the Administrator of OIRA:

(a) Agency Responsibilities. (1) Each agency shall (consistent with its own rules, regulations, or procedures)

provide the public with meaningful participation in the

regulatory process. In particular, before issuing a notice of proposed rulemaking, each agency should, where

appropriate, seek the involvement of those who are intended to benefit from and those expected to be burdened by any regulation (including, specifically, State,

local, and tribal officials). In addition, each agency

should afford the public a meaningful opportunity to

comment on any proposed regulation, which in most

cases should include a comment period of not less than

60 days. Each agency also is directed to explore and,

where appropriate, use consensual mechanisms for developing regulations, including negotiated rulemaking.

(2) Within 60 days of the date of this Executive order,

each agency head shall designate a Regulatory Policy

Officer who shall report to the agency head. The Regulatory Policy Officer shall be involved at each stage of

the regulatory process to foster the development of effective, innovative, and least burdensome regulations

and to further the principles set forth in this Executive

order.

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TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(3) In addition to adhering to its own rules and procedures and to the requirements of the Administrative

Procedure Act [see Short Title note preceding section

551 of this title], the Regulatory Flexibility Act [5

U.S.C. 601 et seq.], the Paperwork Reduction Act [44

U.S.C. 3501 et seq.], and other applicable law, each

agency shall develop its regulatory actions in a timely

fashion and adhere to the following procedures with respect to a regulatory action:

(A) Each agency shall provide OIRA, at such times

and in the manner specified by the Administrator of

OIRA, with a list of its planned regulatory actions,

indicating those which the agency believes are significant regulatory actions within the meaning of

this Executive order. Absent a material change in the

development of the planned regulatory action, those

not designated as significant will not be subject to review under this section unless, within 10 working

days of receipt of the list, the Administrator of OIRA

notifies the agency that OIRA has determined that a

planned regulation is a significant regulatory action

within the meaning of this Executive order. The Administrator of OIRA may waive review of any

planned regulatory action designated by the agency

as significant, in which case the agency need not further comply with subsection (a)(3)(B) or subsection

(a)(3)(C) of this section.

(B) For each matter identified as, or determined by

the Administrator of OIRA to be, a significant regulatory action, the issuing agency shall provide to

OIRA:

(i) The text of the draft regulatory action, together with a reasonably detailed description of the

need for the regulatory action and an explanation

of how the regulatory action will meet that need;

and

(ii) An assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate and, to

the extent permitted by law, promotes the President's priorities and avoids undue interference with

State, local, and tribal governments in the exercise

of their governmental functions.

(C) For those matters identified as, or determined

by the Administrator of OIRA to be, a significant regulatory action within the scope of section 3(f)(1), the

agency shall also provide to OIRA the following additional information developed as part of the agency's

decision-making process (unless prohibited by law):

(i) An assessment, including the underlying

analysis, of benefits anticipated from the regulatory action (such as, but not limited to, the promotion of the efficient functioning of the economy

and private markets, the enhancement of health

and safety, the protection of the natural environment, and the elimination or reduction of discrimination or bias) together with, to the extent feasible, a quantification of those benefits;

(ii) An assessment, including the underlying

analysis, of costs anticipated from the regulatory

action (such as, but not limited to, the direct cost

both to the government in administering the regulation and to businesses and others in complying

with the regulation, and any adverse effects on the

efficient functioning of the economy, private markets (including productivity, employment, and

competitiveness), health, safety, and the natural

environment), together with, to the extent feasible,

a quantification of those costs; and

(iii) An assessment, including the underlying

analysis, of costs and benefits of potentially effective and reasonably feasible alternatives to the

planned regulation, identified by the agencies or

the public (including improving the current regulation and reasonably viable nonregulatory actions),

and an explanation why the planned regulatory action is preferable to the identified potential alternatives.

(D) In emergency situations or when an agency is

obligated by law to act more quickly than normal review procedures allow, the agency shall notify OIRA

as soon as possible and, to the extent practicable,

comply with subsections (a)(3)(B) and (C) of this section. For those regulatory actions that are governed

by a statutory or court-imposed deadline, the agency

shall, to the extent practicable, schedule rulemaking

proceedings so as to permit sufficient time for OIRA

to conduct its review, as set forth below in subsection

(b)(2) through (4) of this section.

(E) After the regulatory action has been published

in the Federal Register or otherwise issued to the

public, the agency shall:

(i) Make available to the public the information

set forth in subsections (a)(3)(B) and (C);

(ii) Identify for the public, in a complete, clear,

and simple manner, the substantive changes between the draft submitted to OIRA for review and

the action subsequently announced; and

(iii) Identify for the public those changes in the

regulatory action that were made at the suggestion

or recommendation of OIRA.

(F) All information provided to the public by the

agency shall be in plain, understandable language.

(b) OIRA Responsibilities. The Administrator of OIRA

shall provide meaningful guidance and oversight so

that each agency's regulatory actions are consistent

with applicable law, the President's priorities, and the

principles set forth in this Executive order and do not

conflict with the policies or actions of another agency.

OIRA shall, to the extent permitted by law, adhere to

the following guidelines:

(1) OIRA may review only actions identified by the

agency or by OIRA as significant regulatory actions

under subsection (a)(3)(A) of this section.

(2) OIRA shall waive review or notify the agency in

writing of the results of its review within the following time periods:

(A) For any notices of inquiry, advance notices of

proposed rulemaking, or other preliminary regulatory actions prior to a Notice of Proposed Rulemaking, within 10 working days after the date of

submission of the draft action to OIRA;

(B) For all other regulatory actions, within 90

calendar days after the date of submission of the information set forth in subsections (a)(3)(B) and (C)

of this section, unless OIRA has previously reviewed this information and, since that review,

there has been no material change in the facts and

circumstances upon which the regulatory action is

based, in which case, OIRA shall complete its review within 45 days; and

(C) The review process may be extended (1) once

by no more than 30 calendar days upon the written

approval of the Director and (2) at the request of

the agency head.

(3) For each regulatory action that the Administrator of OIRA returns to an agency for further consideration of some or all of its provisions, the Administrator of OIRA shall provide the issuing agency a

written explanation for such return, setting forth the

pertinent provision of this Executive order on which

OIRA is relying. If the agency head disagrees with

some or all of the bases for the return, the agency

head shall so inform the Administrator of OIRA in

writing.

(4) Except as otherwise provided by law or required

by a Court, in order to ensure greater openness, accessibility, and accountability in the regulatory review process, OIRA shall be governed by the following

disclosure requirements:

(A) Only the Administrator of OIRA (or a particular designee) shall receive oral communications initiated by persons not employed by the executive

branch of the Federal Government regarding the

substance of a regulatory action under OIRA review;

(B) All substantive communications between

OIRA personnel and persons not employed by the

executive branch of the Federal Government regarding a regulatory action under review shall be

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TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

governed by the following guidelines: (i) A representative from the issuing agency shall be invited

to any meeting between OIRA personnel and such

person(s);

(ii) OIRA shall forward to the issuing agency,

within 10 working days of receipt of the communication(s), all written communications, regardless

of format, between QIRA personnel and any person

who is not employed by the executive branch of the

Federal Government, and the dates and names of

individuals involved in all substantive oral communications (including meetings to which an agency

representative was invited, but did not attend, and

telephone conversations between OIRA personnel

and any such persons); and

(iii) OIRA shall publicly disclose relevant information about such communication(s), as set forth

below in subsection (b)(4)(C) of this section.

(C) OIRA shall maintain a publicly available log

that shall contain, at a minimum, the following information pertinent to regulatory actions under review:

(i) The status of all regulatory actions, including if (and if so, when and by whom) Vice Presidential and Presidential consideration was requested;

(ii) A notation of all written communications

forwarded to an issuing agency under subsection

(b)(4)(B)(ii) of this section; and

(iii) The dates and names of individuals involved in all substantive oral communications,

including meetings and telephone conversations,

between OIRA personnel and any person not employed by the executive branch of the Federal

Government, and the subject matter discussed

during such communications.

(D) After the regulatory action has been published in the Federal Register or otherwise issued

to the public, or after the agency has announced its

decision not to publish or issue the regulatory action, OIRA shall make available to the public all

documents exchanged between OIRA and the agency during the review by OIRA under this section.

(5) All information provided to the public by OIRA

shall be in plain, understandable language.

SEC. 7. Resolution of Conflicts. To the extent permitted

by law, disagreements or conflicts between or among

agency heads or between OMB and any agency that

cannot be resolved by the Administrator of OIRA shall

be resolved by the President, or by the Vice President

acting at the request of the President, with the relevant agency head (and, as appropriate, other interested government officials). Vice Presidential and Presidential consideration of such disagreements may be

initiated only by the Director, by the head of the issuing agency, or by the head of an agency that has a significant interest in the regulatory action at issue. Such

review will not be undertaken at the request of other

persons, entities, or their agents.

Resolution of such conflicts shall be informed by recommendations developed by the Vice President, after

consultation with the Advisors (and other executive

branch officials or personnel whose responsibilities to

the President include the subject matter at issue). The

development of these recommendations shall be concluded within 60 days after review has been requested.

During the Vice Presidential and Presidential review

period, communications with any person not employed

by the Federal Government relating to the substance of

the regulatory action under review and directed to the

Advisors or their staffs or to the staff of the Vice President shall be in writing and shall be forwarded by the

recipient to the affected agency(ies) for inclusion in the

public docket(s). When the communication is not in

writing, such Advisors or staff members shall inform

the outside party that the matter is under review and

that any comments should be submitted in writing.

At the end of this review process, the President, or

the Vice President acting at the request of the President, shall notify the affected agency and the Administrator of OIRA of the President's decision with respect

to the matter.

SEC. 8. Publication. Except to the extent required by

law, an agency shall not publish in the Federal Register or otherwise issue to the public any regulatory action that is subject to review under section 6 of this Executive order until (1) the Administrator of OIRA notifies the agency that OIRA has waived its review of the

action or has completed its review without any requests for further consideration, or (2) the applicable

time period in section 6(b)(2) expires without OIRA having notified the agency that it is returning the regulatory action for further consideration under section

6(b)(3), whichever occurs first. If the terms of the preceding sentence have not been satisfied and an agency

wants to publish or otherwise issue a regulatory action,

the head of that agency may request Presidential consideration through the Vice President, as provided

under section 7 of this order. Upon receipt of this request, the Vice President shall notify OIRA and the Advisors. The guidelines and time period set forth in section 7 shall apply to the publication of regulatory actions for which Presidential consideration has been

sought.

SEC. 9. Agency Authority. Nothing in this order shall

be construed as displacing the agencies' authority or

responsibilities, as authorized by law.

SEC. 10. Judicial Review. Nothing in this Executive

order shall affect any otherwise available judicial review of agency action. This Executive order is intended

only to improve the internal management of the Federal Government and does not create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its agencies

or instrumentalities, its officers or employees, or any

other person.

SEC. 11. Revocations. Executive Orders Nos. 12291 and

12498; all amendments to those Executive orders; all

guidelines issued under those orders; and any exemptions from those orders heretofore granted for any category of rule are revoked.

[Section 1 of Ex. Ord. No. 13497, which revoked Ex.

Ords. 13258 and 13422, was executed by undoing the

amendments by those Ex. Ords. to Ex. Ord. 12866, set

out above.]

ExEcUTIVE ORDER No. 12875

Ex. Ord. No. 12875, Oct. 26, 1993, 58 F.R. 58093, which

provided for the reduction of unfunded mandates on

State, local, or tribal governments and increased flexibility for State and local waivers of statutory or regulatory requirements, was revoked by Ex. Ord. No. 13132,

§ 10(b), Aug. 4, 1999, 64 F.R. 43259, set out below.

EXECUTIVE ORDER No. 13083

Ex. Ord. No. 13083, May 14, 1998, 63 F.R. 27651, which

listed fundamental federalism principles and federalism

policymaking criteria to guide agencies in formulating

and implementing policies and required agencies to

have a process to permit State and local governments

to provide input into the development of regulatory

policies that have federalism implications and to

streamline the State and local government waiver

process, was revoked by Ex. Ord. No. 13132, §10(b), Aug.

4, 1999, 64 F.R. 43259, set out below.

EXECUTIVE ORDER No. 13095

Ex. Ord. No. 13095, Aug. 5, 1998, 63 F.R. 42565, which

suspended Ex. Ord. No. 13083, was revoked by Ex. Ord.

No. 13132, §10(b), Aug. 4, 1999, 64 F.R. 43259, set out

below.

Ex. ORD. No. 13107. IMPLEMENTATION OF HUMAN RIGHTS

TREATIES

Ex. Ord. No. 13107, Dec. 10, 1998, 63 F.R. 68991, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and bearing in mind the obligations of the

Page 806
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

United States pursuant to the International Covenant

on Civil and Political Rights (ICCPR), the Convention

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention

on the Elimination of All Forms of Racial Discrimination (CERD), and other relevant treaties concerned

with the protection and promotion of human rights to

which the United States is now or may become a party

in the future, it is hereby ordered as follows:

SECTION 1. Implementation of Human Rights Obligations.

(a) It shall be the policy and practice of the Government of the United States, being committed to the protection and promotion of human rights and fundamental freedoms, fully to respect and implement its obligations under the international human rights treaties to

which it is a party, including the ICCPR, the CAT, and

the CERD.

(b) It shall also be the policy and practice of the Government of the United States to promote respect for

international human rights, both in our relationships

with all other countries and by working with and

strengthening the various international mechanisms

for the promotion of human rights, including, inter alia,

those of the United Nations, the International Labor

Organization, and the Organization of American States.

SEC. 2. Responsibility of Executive Departments and

Agencies. (a) All executive departments and agencies (as

defined in 5 U.S.C. 101-105, including boards and commissions, and hereinafter referred to collectively as

"agency" or "agencies") shall maintain a current

awareness of United States international human rights

obligations that are relevant to their functions and

shall perform such functions so as to respect and implement those obligations fully. The head of each agency

shall designate a single contact officer who will be responsible for overall coordination of the implementation of this order. Under this order, all such agencies

shall retain their established institutional roles in the

implementation, interpretation, and enforcement of

Federal law and policy.

(b) The heads of agencies shall have lead responsibility, in coordination with other appropriate agencies,

for questions concerning implementation of human

rights obligations that fall within their respective operating and program responsibilities and authorities or,

to the extent that matters do not fall within the operating and program responsibilities and authorities of

any agency, that most closely relate to their general

areas of concern.

SEC. 3. Human Rights Inquiries and Complaints. Each

agency shall take lead responsibility, in coordination

with other appropriate agencies, for responding to inquiries, requests for information, and complaints about

violations of human rights obligations that fall within

its areas of responsibility or, if the matter does not fall

within its areas of responsibility, referring it to the appropriate agency for response.

SEC. 4. Interagency Working Group on Human Rights

Treaties. (a) There is hereby established an Interagency

Working Group on Human Rights Treaties for the purpose of providing guidance, oversight, and coordination

with respect to questions concerning the adherence to

and implementation of human rights obligations and

related matters.

(b) The designee of the Assistant to the President for

National Security Affairs shall chair the Interagency

Working Group, which shall consist of appropriate policy and legal representatives at the Assistant Secretary level from the Department of State, the Department of Justice, the Department of Labor, the Department of Defense, the Joint Chiefs of Staff, and other

agencies as the chair deems appropriate. The principal

members may designate alternates to attend meetings

in their stead.

(c) The principal functions of the Interagency Working Group shall include:

(i) coordinating the interagency review of any significant issues concerning the implementation of this

order and analysis and recommendations in connection

with pursuing the ratification of human rights treaties,

as such questions may from time to time arise;

(ii) coordinating the preparation of reports that are

to be submitted by the United States in fulfillment of

treaty obligations;

(iii) coordinating the responses of the United States

Government to complaints against it concerning alleged human rights violations submitted to the United

Nations, the Organization of American States, and

other international organizations;

(iv) developing effective mechanisms to ensure that

legislation proposed by the Administration is reviewed

for conformity with international human rights obligations and that these obligations are taken into account

in reviewing legislation under consideration by the

Congress as well;

(v) developing recommended proposals and mechanisms for improving the monitoring of the actions by

the various States, Commonwealths, and territories of

the United States and, where appropriate, of Native

Americans and Federally recognized Indian tribes, including the review of State, Commonwealth, and territorial laws for their conformity with relevant treaties,

the provision of relevant information for reports and

other monitoring purposes, and the promotion of effective remedial mechanisms;

(vi) developing plans for public outreach and education concerning the provisions of the ICCPR, CAT,

CERD, and other relevant treaties, and human rightsrelated provisions of domestic law;

(vii) coordinating and directing an annual review of

United States reservations, declarations, and understandings to human rights treaties, and matters as to

which there have been nontrivial complaints or allegations of inconsistency with or breach of international

human rights obligations, in order to determine whether there should be consideration of any modification of

relevant reservations, declarations, and understandings

to human rights treaties, or United States practices or

laws. The results and recommendations of this review

shall be reviewed by the head of each participating

agency; -

(viii) making such other recommendations as it shall

deem appropriate to the President, through the Assistant to the President for National Security Affairs, concerning United States adherence to or implementation

of human rights treaties and related matters; and

(ix) coordinating such other significant tasks in connection with human rights treaties or international

human rights institutions, including the Inter-American Commission on Human Rights and the Special

Rapporteurs and complaints procedures established by

the United Nations Human Rights Commission.

(d) The work of the Interagency Working Group shall

not supplant the work of other interagency entities, including the President's Committee on the International Labor Organization, that address international human rights issues.

SEC. 5. Cooperation Among Executive Departments and

Agencies. All agencies shall cooperate in carrying out

the provisions of this order. The Interagency Working

Group shall facilitate such cooperative measures.

SEc. 6. Judicial Review, Scope, and Administration. (a)

Nothing in this order shall create any right or benefit,

substantive or procedural, enforceable by any party

against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

(b) This order does not supersede Federal statutes

and does not impose any justiciable obligations on the

executive branch.

(c) The term "treaty obligations" shall mean treaty

obligations as approved by the Senate pursuant to Article II, section 2, clause 2 of the United States Constitution.

(d) To the maximum extent practicable and subject

to the availability of appropriations, agencies shall

carry out the provisions of this order.

WILLIAM J. CLINTON.

Ex. ORD. No. 13132. FEDERALISM

Ex. Ord. No. 13132, Aug. 4, 1999, 64 F.R. 43255, provided:

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TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to guarantee the division of governmental responsibilities between the national government and the States that was intended by the

Framers of the Constitution, to ensure that the principles of federalism established by the Framers guide

the executive departments and agencies in the formulation and implementation of policies, and to further the

policies of the Unfunded Mandates Reform Act [of 1995,

Pub. L. 104-4, see Tables for classification], it is hereby

ordered as follows:

SECTION 1. Definitions. For purposes of this order:

(a) "Policies that have federalism implications" refers to regulations, legislative comments or proposed

legislation, and other policy statements or actions that

have substantial direct effects on the States, on the relationship between the national government and the

States, or on the distribution of power and responsibilities among the various levels of government.

(b) "State" or "States" refer to the States of the

United States of America, individually or collectively,

and, where relevant, to State governments, including

units of local government and other political subdivisions established by the States.

(c) "Agency" means any authority of the United

States that is an "agency" under 44 U.S.C. 3502(1),

other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(d) "State and local officials" means elected officials

of State and local governments or their representative

national organizations.

SEC. 2. Fundamental Federalism Principles. In formulating and implementing policies that have federalism implications, agencies shall be guided by the following

fundamental federalism principles:

(a) Federalism is rooted in the belief that issues that

are not national in scope or significance are most appropriately addressed by the level of government closest to the people.

(b) The people of the States created the national government and delegated to it enumerated governmental

powers. All other sovereign powers, save those expressly prohibited the States by the Constitution, are

reserved to the States or to the people.

(c) The constitutional relationship among sovereign

governments, State and national, is inherent in the

very structure of the Constitution and is formalized in

and protected by the Tenth Amendment to the Constitution.

(d) The people of the States are free, subject only to

restrictions in the Constitution itself or in constitutionally authorized Acts of Congress, to define the

moral, political, and legal character of their lives.

(e) The Framers recognized that the States possess

unique authorities, qualities, and abilities to meet the

needs of the people and should function as laboratories

of democracy.

(f) The nature of our constitutional system encourages a healthy diversity in the public policies adopted

by the people of the several States according to their

own conditions, needs, and desires. In the search for enlightened public policy, individual States and communities are free to experiment with a variety of approaches to -public issues. One-size-fits-all approaches

to public policy problems can inhibit the creation of effective solutions to those problems.

(g) Acts of the national government-whether legislative, executive, or judicial in nature-that exceed the

enumerated powers of that government under the Constitution violate the principle of federalism established

by the Framers.

(h) Policies of the national government should recognize the responsibility of-and should encourage opportunities for-individuals, families, neighborhoods, local

governments, and private associations to achieve their

personal, social, and economic objectives through cooperative effort.

(i) The national government should be deferential to

the States when taking action that affects the policymaking discretion of the States and should act only

with the greatest caution where State or local governments have identified uncertainties regarding the constitutional or statutory authority of the national government.

SEC. 3. Federalism Policymaking Criteria. In addition to

adhering to the fundamental federalism principles set

forth in section 2, agencies shall adhere, to the extent

permitted by law, to the following criteria when formulating and implementing policies that have federalism

implications:

(a) There shall be strict adherence to constitutional

principles. Agencies shall closely examine the constitutional and statutory authority supporting any action

that would limit the policymaking discretion of the

States and shall carefully assess the necessity for such

action. To the extent practicable, State and local officials shall be consulted before any such action is implemented. Executive Order 12372 of July 14, 1982 ("Intergovernmental Review of Federal Programs") [31 U.S.C.

6506 note] remains in effect for the programs and activities to which it is applicable.

(b) National action limiting the policymaking discretion of the States shall be taken only where there is

constitutional and statutory authority for the action

and the national activity is appropriate in light of the

presence of a problem of national significance. Where

there are significant uncertainties as to whether national action is authorized or appropriate, agencies

shall consult with appropriate State and local officials

to determine whether Federal objectives can be attained by other means.

(c) With respect to Federal statutes and regulations

administered by the States, the national government

shall grant the States the maximum administrative

discretion possible. Intrusive Federal oversight of

State administration is neither necessary nor desirable.

(d) When undertaking to formulate and implement

policies that have federalism implications, agencies

shall:

(1) encourage States to develop their own policies

to achieve program objectives and to work with appropriate officials in other States;

(2) where possible, defer to the States to establish

standards;

(3) in determining whether to establish uniform national standards, consult with appropriate State and

local officials as to the need for national standards

and any alternatives that would limit the scope of

national standards or otherwise preserve State prerogatives and authority; and

(4) where national standards are required by Federal statutes, consult with appropriate State and

local officials in developing those standards.

SEC. 4. Special Requirements for Preemption. Agencies,

in taking action that preempts State law, shall act in

strict accordance with governing law.

(a) Agencies shall construe, in regulations and otherwise, a Federal statute to preempt State law only

where the statute contains an express preemption provision or there is some other clear evidence that the

Congress intended preemption of State law, or where

the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute. (b) Where a Federal statute does not preempt State

law (as addressed in subsection (a) of this section),

agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority under the Federal statute

or there is clear evidence to conclude that the Congress

intended the agency to have the authority to preempt

State law.

(c) Any regulatory preemption of State law shall be

restricted to the minimum level necessary to achieve

the objectives of the statute pursuant to which the regulations are promulgated.

(d) When an agency foresees the possibility of a conflict between State law and Federally protected inter-

§ 601 Page 808
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

ests within its area of regulatory responsibility, the

agency shall consult, to the extent practicable, with

appropriate State and local officials in an effort to

avoid such a conflict.

(e) When an agency proposes to act through adjudication or rulemaking to preempt State law, the agency

shall provide all affected State and local officials notice and an opportunity for appropriate participation in

the proceedings.

SEC. 5. Special Requirements for Legislative Proposals.

Agencies shall not submit to the Congress legislation

that would:

(a) directly regulate the States in ways that would either interfere with functions essential to the States'

separate and independent existence or be inconsistent

with the fundamental federalism principles in section

2;

(b) attach to Federal grants conditions that are not

reasonably related to the purpose of the grant; or

(c) preempt State law, unless preemption is consistent with the fundamental federalism principles set

forth in section 2, and unless a clearly legitimate national purpose, consistent with the federalism policymaking criteria set forth in section 3, cannot otherwise

be met.

SEC. 6. Consultation.

(a) Each agency shall have an accountable process to

ensure meaningful and timely input by State and local

officials in the development of regulatory policies that

have federalism implications. Within 90 days after the

effective date of this order, the head of each agency

shall designate an official with principal responsibility

for the agency's implementation of this order and that

designated official shall submit to the Office of Management and Budget a description of the agency's consultation process.

(b) To the extent practicable and permitted by law,

no agency shall promulgate any regulation that has

federalism implications, that imposes substantial direct compliance costs on State and local governments,

and that is not required by statute, unless:

(1) funds necessary to pay the direct costs incurred

by the State and local governments in complying

with the regulation are provided by the Federal Government; or

(2) the agency, prior to the formal promulgation of

the regulation,

(A) consulted with State and local officials early

in the process of developing the proposed regulation;

(B) in a separately identified portion of the preamble to the regulation as it is to be issued in the

Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation with State and local officials, a summary

of the nature of their concerns and the agency's position supporting the need to issue the regulation,

and a statement of the extent to which the concerns of State and local officials have been met;

and

(C) makes available to the Director of the Office

of Management and Budget any written communications submitted to the agency by State and

local officials.

(c) To the extent practicable and permitted by law,

no agency shall promulgate any regulation that has

federalism implications and that preempts State law,

unless the agency, prior to the formal promulgation of

the regulation,

(1) consulted with State and local officials early in

the process of developing the proposed regulation;

(2) in a separately identified portion of the preamble to the regulation as it is to be issued in the

Federal Register, provides to the Director of the Office of Management and Budget a federalism summary impact statement, which consists of a description of the extent of the agency's prior consultation

with State and local officials, a summary of the nature of their concerns and the agency's position supporting the need to issue the regulation, and a statement of the extent to which the concerns of State

and local officials have been met; and

(3) makes available to the Director of the Office of

Management and Budget any written communications submitted to the agency by State and local officials.

SEC. 7. Increasing Flexibility for State and Local Waivers.

(a) Agencies shall review the processes under which

State and local governments apply for waivers of statutory and regulatory requirements and take appropriate

steps to streamline those processes.

(b) Each agency shall, to the extent practicable and

permitted by law, consider any application by a State

for a waiver of statutory or regulatory requirements in

connection with any program administered by that

agency with a general view toward increasing opportunities for utilizing flexible policy approaches at the

State or local level in cases in which the proposed

waiver is consistent with applicable Federal policy objectives and is otherwise appropriate.

(c) Each agency shall, to the extent practicable and

permitted by law, render a decision upon a complete

application for a waiver within 120 days of receipt of

such application by the agency. If the application for a

waiver is not granted, the agency shall provide the applicant with timely written notice of the decision and

the reasons therefor.

(d) This section applies only to statutory or regulatory requirements that are discretionary and subject

to waiver by the agency.

SEC. 8. Accountability.

(a) In transmitting any draft final regulation that

has federalism implications to the Office of Management and Budget pursuant to Executive Order 12866 of

September 30, 1993 [set out above], each agency shall include a certification from the official designated to ensure compliance with this order stating that the requirements of this order have been met in a meaningful

and timely manner.

(b) In transmitting proposed legislation that has federalism implications to the Office of Management and

Budget, each agency shall include a certification from

the official designated to ensure compliance with this

order that all relevant requirements of this order have

been met.

(c) Within 180 days after the effective date of this

order, the Director of the Office of Management and

Budget and the Assistant to the President for Intergovernmental Affairs shall confer with State and local officials to ensure that this order is being properly and

effectively implemented.

SEC. 9. Independent Agencies. Independent regulatory

agencies are encouraged to comply with the provisions

of this order.

SEC. 10. General Provisions.

(a) This order shall supplement but not supersede the

requirements contained in Executive Order 12372

("Intergovernmental Review of Federal Programs") [31

U.S.C. 6506 note], Executive Order 12866 ("Regulatory

Planning and Review") [set out above], Executive Order

12988 ("Civil Justice Reform" [28 U.S.C. 519 note]), and

OMB Circular A-19.

(b) Executive Order 12612 ("Federalism"), Executive

Order 12875 ("Enhancing the Intergovernmental Partnership"), Executive Order 13083 ("Federalism"), and

Executive Order 13095 ("Suspension of Executive Order

13083") are revoked.

(c) This order shall be effective 90 days after the date

of this order.

SEC. 11. Judicial Review. This order is intended only to

improve the internal management of the executive

branch, and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a

party against the United States, its agencies, its officers, or any person.

WILLIAM J. CLINTON.

Page 809 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

Ex. ORD. No. 13198. AGENCY RESPONSIBILITIES WITH

RESPECT TO FAITH-BASED AND COMMUNITY INITIATIVES

Ex. Ord. No. 13198, Jan. 29, 2001, 66 F.R. 8497, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to help the Federal Government

coordinate a national effort to expand opportunities for

faith-based and other community organizations and to

strengthen their capacity to better meet social needs in

America's communities, it is hereby ordered as follows:

SECTION 1. Establishment of Executive Department Centers for Faith-Based and Community Initiatives. (a) The

Attorney General, the Secretary of Education, the Secretary of Labor, the Secretary of Health and Human

Services, and the Secretary of Housing and Urban Development shall each establish within their respective

departments a Center for Faith-Based and Community

Initiatives (Center).

(b) Each executive department Center shall be supervised by a Director, appointed by the department head

in consultation with the White House Office of FaithBased and Community Initiatives (White House

OFBCI).

(c) Each department shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) Each department's Center shall begin operations

no later than 45 days from the date of this order.

SEC. 2. Purpose of Executive Department Centers for

Faith-Based and Community Initiatives. The purpose of

the executive department Centers will be to coordinate

department efforts to eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based and other community organizations

in the provision of social services.

SEC. 3. Responsibilities of Executive Department Centers

for Faith-Based and Community Initiatives. Each Center

shall, to the extent permitted by law: (a) conduct, in

coordination with the White House OFBCI, a department-wide audit to identify all existing barriers to the

participation of faith-based and other community organizations in the delivery of social services by the department, including but not limited to regulations,

rules, orders, procurement, and other internal policies

and practices, and outreach activities that either

facially discriminate against or otherwise discourage

or disadvantage the participation of faith-based and

other community organizations in Federal programs;

(b) coordinate a comprehensive departmental effort

to incorporate faith-based and other community organizations in department programs and initiatives to

the greatest extent possible;

(c) propose initiatives to remove barriers identified

pursuant to section 3(a) of this order, including but not

limited to reform of regulations, procurement, and

other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and

demonstration programs to increase the participation

of faith-based and other community organizations in

Federal as well as State and local initiatives; and

(e) develop and coordinate department outreach efforts to disseminate information more effectively to

faith-based and other community organizations with

respect to programming changes, contracting opportunities, and other department initiatives, including but

not limited to Web and Internet resources.

SEC. 4. Additional Responsibilities of the Department of

Health and Human Services and the Department of Labor

Centers. In addition to those responsibilities described

in section 3 of this order, the Department of Health and

Human Services and the Department of Labor Centers

shall, to the extent permitted by law: (a) conduct a

comprehensive review of policies and practices affecting existing funding streams governed by so-called

"Charitable Choice" legislation to assess the department's compliance with the requirements of Charitable

Choice; and (b) promote and ensure compliance with existing Charitable Choice legislation by the department,

as well as its partners in State and local government,

and their contractors.

SEC. 5. Reporting Requirements. (a) Report. Not later

than 180 days after the date of this order and annually

thereafter, each of the five executive department Centers described in section 1 of this order shall prepare

and submit a report to the White House OFBCI.

(b) Contents. The report shall include a description of

the department's efforts in carrying out its responsibilities under this order, including but not limited to:

(1) a comprehensive analysis of the barriers to the

full participation of faith-based and other community

organizations in the delivery of social services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and

(2) a summary of the technical assistance and other

information that will be available to faith-based and

other community organizations regarding the program activities of the department and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report, filed 180

days after the date of this order, shall include annual

performance indicators and measurable objectives for

department action. Each report filed thereafter shall

measure the department's performance against the objectives set forth in the initial report.

SEC. 6. Responsibilities of All Executive Departments and

Agencies. All executive departments and agencies (agencies) shall: (a) designate an agency employee to serve

as the liaison and point of contact with the White

House OFBCI; and

(b) cooperate with the White House OFBCI and provide such information, support, and assistance to the

White House OFBCI as it may request, to the extent

permitted by law.

SEC. 7. Administration and Judicial Review. (a) The

agencies' actions directed by this Executive Order shall

be carried out subject to the availability of appropriations and to the extent permitted by law.

(b) This order does not create any right or benefit,

substantive or procedural, enforceable at law or equity

against the United States, its agencies or instrumentalities, its officers or employees, or any other person.

GEORGE W. BUSH.

EX. ORD. No. 13272. PROPER CONSIDERATION OF SMALL

ENTITIES IN AGENCY RULEMAKING

Ex. Ord. No. 13272, Aug. 13, 2002, 67 F.R. 53461, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, it is hereby ordered as follows:

SECTION 1. General Requirements. Each agency shall establish procedures and policies to promote compliance

with the Regulatory Flexibility Act, as amended (5

U.S.C. 601 et seq.) (the "Act"). Agencies shall thoroughly review draft rules to assess and take appropriate account of the potential impact on small businesses, small governmental jurisdictions, and small organizations, as provided by the Act. The Chief Counsel

for Advocacy of the Small Business Administration

(Advocacy) shall remain available to advise agencies in

performing that review consistent with the provisions

of the Act.

SEC. 2. Responsibilities of Advocacy. Consistent with

the requirements of the Act, other applicable law, and

Executive Order 12866 of September 30, 1993, as amended

[set out above], Advocacy:

(a) shall notify agency heads from time to time of the

requirements of the Act, including by issuing notifications with respect to the basic requirements of the Act

within 90 days of the date of this order;

(b) shall provide training to agencies on compliance

with the Act; and

(c) may provide comment on draft rules to the agency

that has proposed or intends to propose the rules and to

the Office of Information and Regulatory Affairs of the

Office of Management and Budget (OIRA).

§ 601 Page 810
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

SEC. 3. Responsibilities of Federal Agencies. Consistent

with the requirements of the Act and applicable law,

agencies shall:

(a) Within 180 days of the date of this order, issue

written procedures and policies, consistent with the

Act, to ensure that the potential impacts of agencies'

draft rules on small businesses, small governmental jurisdictions, and small organizations are properly considered during the rulemaking process. Agency heads

shall submit, no later than 90 days from the date of this

order, their written procedures and policies to Advocacy for comment. Prior to issuing final procedures and

policies, agencies shall consider any such comments received within 60 days from the date of the submission

of the agencies' procedures and policies to Advocacy.

Except to the extent otherwise specifically provided by

statute or Executive Order, agencies shall make the

final procedures and policies available to the public

through the Internet or other easily accessible means;

(b) Notify Advocacy of any draft rules that may have

a significant economic impact on a substantial number

of small entities under the Act. Such notifications

shall be made (i) when the agency submits a draft rule

to OIRA under Executive Order 12866 [set out above] if

that order requires such submission, or (ii) if no submission to OIRA is so required, at a reasonable time

prior to publication of the rule by the agency; and

(c) Give every appropriate consideration to any comments provided by Advocacy regarding a draft rule.

Consistent with applicable law and appropriate protection of executive deliberations and legal privileges, an

agency shall include, in any explanation or discussion

accompanying publication in the Federal Register of a

final rule, the agency's response to any written comments submitted by Advocacy on the proposed rule

that preceded the final rule; provided, however, that

such inclusion is not required if the head of the agency

certifies that the public interest is not served thereby.

Agencies and Advocacy may, to the extent permitted

by law, engage in an exchange of data and research, as

appropriate, to foster the purposes of the Act.

SEC. 4. Definitions. Terms defined in section 601 of

title 5, United States Code, including the term "agency," shall have the same meaning in this order.

SEC. 5. Preservation of Authority. Nothing in this order

shall be construed to impair or affect the authority of

the Administrator of the Small Business Administration to supervise the Small Business Administration as

provided in the first sentence of section 2(b)(1) of Public Law 85-09536 [Pub. L. 85-536] (15 U.S.C. 633(b)(1)).

SEC. 6. Reporting. For the purpose of promoting compliance with this order, Advocacy shall submit a report

not less than annually to the Director of the Office of

Management and Budget on the extent of compliance

with this order by agencies.

SEC. 7. Confidentiality. Consistent with existing law,

Advocacy may publicly disclose information that it receives from the agencies in the course of carrying out

this order only to the extent that such information already has been lawfully and publicly disclosed by OIRA

or the relevant rulemaking agency.

SEC. 8. Judicial Review. This order is intended only to

improve the internal management of the Federal Government. This order is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or equity, against the United States,

its departments, agencies, or other entities, its officers

or employees, or any other person.

GEORGE W. BUSH.

Ex. ORD. No. 13279. EQUAL PROTECTION OF THE LAWS FOR

FAITH-BASED AND OTHER NEIGHBORHOOD ORGANIZATIONS

Ex. Ord. No. 13279, Dec. 12, 2002, 67 F.R. 77141, as

amended by Ex. Ord. No. 13403, §2, May 12, 2006, 71 F.R.

28543; Ex. Ord. No. 13559, Nov. 17, 2010, 75 F.R. 71319, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, including section 121(a) of title 40, United

States Code, and section 301 of title 3, United States

Code, and in order to guide Federal agencies in formulating and developing policies with implications for

faith-based organizations and other other [sic] neighborhood organizations, to ensure equal protection of

the laws for faith-based and other neighborhood organizations, to further the national effort to expand opportunities for, and strengthen the capacity of; faith-based

and other other [sic] neighborhood organizations so

that they may better meet social needs in America's

communities, and to ensure the economical and efficient administration and completion of Government

contracts, it is hereby ordered as follows:

SECTION 1. Definitions. For purposes of this order:

(a) "Federal financial assistance" means assistance

that non-Federal entities receive or administer in the

form of grants, contracts, loans, loan guarantees, property, cooperative agreements, food commodities, direct

appropriations, or other assistance, but does not include a tax credit, deduction, or exemption.

(b) "Social service program" means a program that is

administered by the Federal Government, or by a State

or local government using Federal financial assistance,

and that provides services directed at reducing poverty,

improving opportunities for low-income children, revitalizing low-income communities, empowering low-income families and low-income individuals to become

self-sufficient, or otherwise helping people in need.

Such programs include, but are not limited to, the following:

(i) child care services, protective services for children and adults, services for children and adults in

foster care, adoption services, services related to the

management and maintenance of the home, day care

services for adults, and services to meet the special

needs of children, older individuals, and individuals

with disabilities (including physical, mental, or emotional disabilities);

(ii) transportation services;

(iii) job training and related services, and employment services;

(iv) information, referral, and counseling services;

(v) the preparation and delivery of meals and services related to soup kitchens or food banks;

(vi) health support services;

(vii) literacy and mentoring programs;

(viii) services for the prevention and treatment of

juvenile delinquency and substance abuse, services

for the prevention of crime and the provision of assistance to the victims and the families of criminal

offenders, and services related to intervention in, and

prevention of, domestic violence; and

(ix) services related to the provision of assistance

for housing under Federal law.

(c) "Policies that have implications for faith-based

and other neighborhood organizations" refers to all

policies, programs, and regulations, including official

guidance and internal agency procedures, that have significant effects on faith-based organizations participating in or seeking to participate in social service programs supported with Federal financial assistance.

(d) "Agency" means a department or agency in the

executive branch.

(e) "Specified agency heads" means:

(i) the Attorney General;

(ii) the Secretary of Agriculture;

(iii) the Secretary of Commerce;

(iv) the Secretary of Labor;

(v) the Secretary of Health and Human Services;

(vi) the Secretary of Housing and Urban Development;

(vii) the Secretary of Education;

(viii) the Secretary of Veterans Affairs;

(ix) the Secretary of Homeland Security;

(x) the Administrator of the Environmental Protection Agency;

(xi) the Administrator of the Small Business Administration;

(xii) the Administrator of the United States Agency

for International Development; and

Page 811
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(xiii) the Chief Executive Officer of the Corporation

for National and Community Service.

SEC. 2. Fundamental Principles. In formulating and implementing policies that have implications for faithbased and other neighborhood organizations, agencies

that administer social service programs or that support

(including through prime awards or sub-awards) social

service programs with Federal financial assistance

shall, to the extent permitted by law, be guided by the

following fundamental principles:

(a) Federal financial assistance for social service programs should be distributed in the most effective and

efficient manner possible.

(b) The Nation's social service capacity will benefit if

all eligible organizations, including faith-based and

other neighborhood organizations, are able to compete

on an equal footing for Federal financial assistance

used to support social service programs.

(c) No organization should be discriminated against

on the basis of religion or religious belief in the administration or distribution of Federal financial assistance

under social service programs.

(d) All organizations that receive Federal financial

assistance under social service programs should be prohibited from discriminating against beneficiaries or

prospective beneficiaries of the social service programs

on the basis of religion or religious belief. Accordingly,

organizations, in providing services supported in whole

or in part with Federal financial assistance, and in

their outreach activities related to such services,

should not be allowed to discriminate against current

or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious

belief, or a refusal to attend or participate in a religious practice.

(e) The Federal Government must implement Federal

programs in accordance with the Establishment Clause

and the Free Exercise Clause of the First Amendment

to the United States Constitution, as well as other applicable law, and must monitor and enforce standards

regarding the relationship between religion and government in ways that avoid excessive entanglement between religious bodies and governmental entities.

(f) Organizations that engage in explicitly religious

activities (including activities that involve overt religious content such as worship, religious instruction, or

proselytization) must perform such activities and offer

such services outside of programs that are supported

with direct Federal financial assistance (including

through prime awards or sub-awards), separately in

time or location from any such programs or services

supported with direct Federal financial assistance, and

participation in any such explicitly religious activities

must be voluntary for the beneficiaries of the social

service program supported with such Federal financial

assistance.

(g) Faith-based organizations should be eligible to

compete for Federal financial assistance used to support social service programs and to participate fully in

the social service programs supported with Federal financial assistance without impairing their independence, autonomy, expression outside the programs in

question, or religious character. Accordingly, a faithbased organization that applies for, or participates in,

a social service program supported with Federal financial assistance may retain its independence and may

continue to carry out its mission, including the definition, development, practice, and expression of its religious beliefs, provided that it does not use direct Federal financial assistance that it receives (including

through a prime award or sub-award) to support or engage in any explicitly religious activities (including activities that involve overt religious content such as

worship, religious instruction, or proselytization), or in

any other manner prohibited by law. Among other

things, faith-based organizations that receive Federal

financial assistance may use their facilities to provide

social services supported with Federal financial assistance, without removing or altering religious art, icons,

scriptures, or other symbols from these facilities. In

addition, a faith-based organization that applies for, or

participates in, a social service program supported with

Federal financial assistance may retain religious terms

in its name, select its board members on a religious

basis, and include religious references in its organization's mission statements and other chartering or governing documents.

(h) Each agency responsible for administering or

awarding Federal financial assistance for social service

programs shall offer protections for beneficiaries of

such programs pursuant to the following principles:

(i) Referral to an Alternative Provider. If a beneficiary

or prospective beneficiary of a social service program

supported by Federal financial assistance objects to the

religious character of an organization that provides

services under the program, that organization shall,

within a reasonable time after the date of the objection, refer the beneficiary to an alternative provider.

(ii) Agency Responsibilities. Each agency responsible

for administering a social service program or supporting a social service program with Federal financial assistance shall establish policies and procedures designed to ensure that (1) appropriate and timely referrals are made to an alternative provider; (2) all referrals are made in a manner consistent with all applicable privacy laws and regulations; (3) the organization

subject to subsection (h)(i) notifies the agency of any

referral; (4) such organization has established a process

for determining whether the beneficiary has contacted

the alternative provider; and (5) each beneficiary of a

social service program receives written notice of the

protections set forth in this subsection prior to enrolling in or receiving services from such program.

(i) To promote transparency and accountability,

agencies that provide Federal financial assistance for

social service programs shall post online, in an easily

accessible manner, regulations, guidance documents,

and policies that reflect or elaborate upon the fundamental principles described in this section. Agencies

shall also post online a list of entities that receive Federal financial assistance for provision of social service

programs, consistent with law and pursuant to guidance set forth in paragraph (c) of section 3 of this order.

(j) Decisions about awards of Federal financial assistance must be free from political interference or even

the appearance of such interference and must be made

on the basis of merit, not on the basis of the religious

affiliation of a recipient organization or lack thereof.

SEC. 3. Ensuring Uniform Implementation Across the

Federal Government. In order to promote uniformity in

agencies' policies that have implications for faithbased and other neighborhood organizations and in related guidance, and to ensure that those policies and

guidance are consistent with the fundamental principles set forth in section 2 of this order, there is established an Interagency Working Group on Faith-Based

and Other Neighborhood Partnerships (Working Group).

(a) Mission and Function of the Working Group. The

Working Group shall meet periodically to review and

evaluate existing agency regulations, guidance documents, and policies that have implications for faithbased and other neighborhood organizations. Where appropriate, specified agency heads shall, to the extent

permitted by law, amend all such existing policies of

their respective agencies to ensure that they are consistent with the fundamental principles set forth in

section 2 of this order.

(b) Uniform Agency Implementation. Within 120 days of

the date of this order, the Working Group shall submit

a report to the President on amendments, changes, or

additions that are necessary to ensure that regulations

and guidance documents associated with the distribution of Federal financial assistance for social service

programs are consistent with the fundamental principles set forth in section 2 of this order. The Working

Group's report should include, but not be limited to, a

model set of regulations and guidance documents for

agencies to adopt in the following areas:

(i) prohibited uses of direct Federal financial assistance and separation requirements; (ii) protections for

§ 601 Page 812
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

religious identity; (iii) the distinction between "direct"

and "indirect" Federal financial assistance; (iv) protections for beneficiaries of social service programs; (v)

transparency requirements, consistent with and in furtherance of existing open government initiatives; (vi)

obligations of nongovernmental and governmental

intermediaries; (vii) instructions for peer reviewers and

those who recruit peer reviewers; and (viii) training on

these matters for government employees and for Federal, State, and local governmental and nongovernmental organizations that receive Federal financial assistance under social service programs. In developing

this report and in reviewing agency regulations and

guidance for consistency with section 2 of this order,

the Working Group shall consult the March 2010 report

and recommendations prepared by the President's Advisory Council on Faith-Based and Neighborhood Partnerships on the topic of reforming the Office of FaithBased and Neighborhood Partnerships.

(c) Guidance. The Director of the Office of Management and Budget (OMB), following receipt of a copy of

the report of the Working Group, and in coordination

with the Department of Justice, shall issue guidance to

agencies on the implementation of this order, including

in particular subsections 2(h)-(j).

(d) Membership of the Working Group. The Director of

the Office of Faith-Based and Neighborhood Partnerships and a senior official from the OMB designated by

the Director of the OMB shall serve as the Co-Chairs of

the Working Group. The Co-Chairs shall convene regular meetings of the Working Group, determine its agenda, and direct its work. In addition to the Co-Chairs,

the Working Group shall consist of a senior official

with knowledge of policies that have implications for

faith-based and other neighborhood organizations from

the following agencies and offices:

(i) the Department of State;

(ii) the Department of Justice;

(iii) the Department of the Interior;

(iv) the Department of Agriculture;

(v) the Department of Commerce;

(vi) the Department of Labor;

(vii) the Department of Health and Human Services;

(viii) the Department of Housing and Urban Development;

(ix) the Department of Education;

(x) the Department of Veterans Affairs;

(xi) the Department of Homeland Security;

(xii) the Environmental Protection Agency;

(xiii) the Small Business Administration;

(xiv) the United States Agency for International Development;

(xv) the Corporation for National and Community

Service; and

(xvi) other agencies and offices as the President, from

time to time, may designate.

(e) Administration of the Initiative. The Department of

Health and Human Services shall provide funding and

administrative support for the Working Group to the

extent permitted by law and within existing appropriations.

SEC. 4. Amendment of Executive Order 11246.

Pursuant to section 121(a) of title 40, United States

Code, and section 301 of title 3, United States Code, and

in order to further the strong Federal interest in ensuring that the cost and progress of Federal procurement

contracts are not adversely affected by an artificial restriction of the labor pool caused by the unwarranted

exclusion of faith-based organizations from such contracts, section 204 of Executive Order 11246 of September 24, 1965, as amended, [42 U.S.C. 2000e note] is hereby

further amended to read as follows:

"SEC. 204 (a) The Secretary of Labor may, when the

Secretary deems that special circumstances in the national interest so require, exempt a contracting agency

from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order.

(b) The Secretary of Labor may, by rule or regulation, exempt certain classes of contracts, subcontracts,

or purchase orders (1) whenever work is to be or has

been performed outside the United States and no recruitment of workers within the limits of the United

States is involved; (2) for standard commercial supplies

or raw materials; (3) involving less than specified

amounts of money or specified numbers of workers; or

(4) to the extent that they involve subcontracts below

a specified tier.

(c) Section 202 of this Order shall not apply to a Government contractor or subcontractor that is a religious

corporation, association, educational institution, or society, with respect to the employment of individuals of

a particular religion to perform work connected with

the carrying on by such corporation, association, educational institution, or society of its activities. Such

contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.

(d) The Secretary of Labor may also provide, by rule,

regulation, or order, for the exemption of facilities of

a contractor that are in all respects separate and distinct from activities of the contractor related to the

performance of the contract: provided, that such an exemption will not interfere with or impede the effectuation of the purposes of this Order: and provided further, that in the absence of such an exemption all facilities shall be covered by the provisions of this

Order."

SEC. 5. General Provisions.

(a) This order supplements but does not supersede the

requirements contained in Executive Orders 13198 [set

out above] and 13199 [3 U.S.C. note prec. 101] of January

29, 2001.

(b) The agencies shall coordinate with the White

House OFBCI concerning the implementation of this

order.

(c) Nothing in this order shall be construed to require

an agency to take any action that would impair the

conduct of foreign affairs or the national security.

SEC. 6. Responsibilities of Executive Departments and

Agencies. All executive departments and agencies (agencies) shall:

(a) designate an agency employee to serve as the liaison and point of contact with the White House OFBCI;

and

(b) cooperate with the White House OFBCI and provide such information, support, and assistance to the

White House OFBCI as it may request, to the extent

permitted by law.

SEC. 7. Judicial Review.

This order is intended only to improve the internal

management of the executive branch, and it is not intended to, and does not, create any right or benefit,

substantive or procedural, enforceable at law or in equity by a party against the United States, its agencies,

or entities, its officers, employees or agents, or any

person.

Ex. ORD. NO. 13280. RESPONSIBILITIES OF THE DEPARTMENT OF AGRICULTURE AND THE AGENCY FOR INTERNATIONAL DEVELOPMENT WITH RESPECT TO FAITHBASED AND COMMUNITY INITIATIVES

Ex. Ord. No. 13280, Dec. 12, 2002, 67 F.R. 77145, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to help the Federal Government

coordinate a national effort to expand opportunities for

faith-based and other community organizations and to

strengthen their capacity to better meet social needs in

America's communities, it is hereby ordered as follows:

SECTION 1. Establishment of Centers for Faith-Based and

Community Initiatives at the Department of Agriculture

and the Agency for International Development. (a) The

Secretary of Agriculture and the Administrator of the

Agency for International Development shall each establish within their respective agencies a Center for

Faith-Based and Community Initiatives (Center).

(b) Each of these Centers shall be supervised by a Director, appointed by the agency head in consultation

Page 813 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

with the White House Office of Faith-Based and Community Initiatives (White House OFBCI).

(c) Each agency shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) Each Center shall begin operations no later than

45 days from the date of this order.

SEC. 2. Purpose of Executive Branch Centers for FaithBased and Community Initiatives. The purpose of the

agency Centers will be to coordinate agency efforts to

eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based

and other community organizations in the provision of

social services.

SEC. 3. Responsibilities of the Centers for Faith-Based

and Community Initiatives. Each Center shall, to the extent permitted by law:

(a) conduct, in coordination with the White House

OFBCI, an agency-wide audit to identify all existing

barriers to the participation of faith-based and other

community organizations in the delivery of social services by the agency, including but not limited to regulations, rules, orders, procurement, and other internal

policies and practices, and outreach activities that either facially discriminate against or otherwise discourage or disadvantage the participation of faith-based

and other community organizations in Federal programs;

(b) coordinate a comprehensive agency effort to incorporate faith-based and other community organizations in agency programs and initiatives to the greatest extent possible;

(c) propose initiatives to remove barriers identified

pursuant to section 3(a) of this order, including but not

limited to reform of regulations, procurement, and

other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and

demonstration programs to increase the participation

of faith-based and other community organizations in

Federal as well as State and local initiatives; and

(e) develop and coordinate agency outreach efforts to

disseminate information more effectively to faithbased and other community organizations with respect

to programming changes, contracting opportunities,

and other agency initiatives, including but not limited

to Web and Internet resources.

SEC. 4. Reporting Requirements.

(a) Report. Not later than 180 days from the date of

this order and annually thereafter, each of the two Centers described in section 1 of this order shall prepare

and submit a report to the White House OFBCI.

(b) Contents. The report shall include a description of

the agency's efforts in carrying out its responsibilities

under this order, including but not limited to:

(i) a comprehensive analysis of the barriers to the

full participation of faith-based and other community

organizations in the delivery of social services identified pursuant to section 3(a) of this order and the proposed strategies to eliminate those barriers; and

(ii) a summary of the technical assistance and

other information that will be available to faithbased and other community organizations regarding

the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report, filed 180

days after the date of this order, shall include annual

performance indicators and measurable objectives for

agency action. Each report filed thereafter shall measure the agency's performance against the objectives set

forth in the initial report.

SEC. 5. Responsibilities of the Secretary of Agriculture

and the Administrator of the Agency for International Development. The Secretary and the Administrator shall:

(a) designate an employee within their respective

agencies to serve as the liaison and point of contact

with the White House OFBCI; and

(b) cooperate with the White House OFBCI and provide such information, support, and assistance to the

White House OFBCI as it may request, to the extent

permitted by law.

SEC. 6. Administration and Judicial Review. (a) The

agency actions directed by this executive order shall be

carried out subject to the availability of appropriations

and to the extent permitted by law.

(b) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United

States, its agencies, or entities, its officers, employees

or agents, or any other person.

GEORGE W. BUSH.

Ex. ORD. No. 13342. RESPONSIBILITIES OF THE DEPARTMENTS OF COMMERCE AND VETERANS AFFAIRS AND THE

SMALL BUSINESS ADMINISTRATION WITH RESPECT TO

FAITH-BASED AND COMMUNITY INITIATIVES

Ex. Ord. No. 13342, June 1, 2004, 69 F.R. 31509, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to help the Federal Government

coordinate a national effort to expand opportunities for

faith-based and other community organizations and to

strengthen their capacity to better meet America's social and community needs, it is hereby ordered as follows:

SECTION 1. Establishment of Centers for Faith-Based and

Community Initiatives at the Departments of Commerce and

Veterans Affairs and the Small Business Administration.

(a) The Secretaries of Commerce and Veterans Affairs

and the Administrator of the Small Business Administration shall each establish within their respective

agencies a Center for Faith-Based and Community Initiatives (Center).

(b) Each of these Centers shall be supervised by a Director, appointed by the agency head in consultation

with the White House Office of Faith-Based and Community Initiatives (White House OFBCI).

(c) Each agency shall provide its Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) Each Center shall begin operations no later than

45 days from the date of this order.

SEC. 2. Purpose of Executive Branch Centers for FaithBased and Community Initiatives. The purpose of the

agency Centers will be to coordinate agency efforts to

eliminate regulatory, contracting, and other programmatic obstacles to the participation of faith-based

and other community organizations in the provision of

social and community services.

SEC. 3. Responsibilities of the Centers for Faith-Based

and Community Initiatives. Each Center shall, to the extent permitted by law:

(a) conduct, in coordination with the White House

OFBCI, an agency-wide audit to identify all existing

barriers to the participation of faith-based and other

community organizations in the delivery of social and

community services by the agency, including but not

limited to regulations, rules, orders, procurement, and

other internal policies and practices, and outreach activities that either facially discriminate against or

otherwise discourage or disadvantage the participation

of faith-based and other community organizations in

Federal programs;

(b) coordinate a comprehensive agency effort to incorporate faith-based and other community organizations in agency programs and initiatives to the greatest extent possible;

(c) propose initiatives to remove barriers identified

pursuant to section 3(a) of this order, including but not

limited to reform of regulations, procurement, and

other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and

demonstration programs to increase the participation

of faith-based and other community organizations in

Federal as well as State and local initiatives; and

(e) develop and coordinate agency outreach efforts to

disseminate information more effectively to faithPage 814
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

based and other community organizations with respect

to programming changes, contracting opportunities,

and other agency initiatives, including but not limited

to Web and Internet resources.

SEC. 4. Reporting Requirements. (a) Report. Not later

than 180 days from the date of this order and annually

thereafter, each of the three Centers described in section 1 of this order shall prepare and submit a report to

the President through the White House OFBCI.

(b) Contents. The report shall include a description of

the agency's efforts in carrying out its responsibilities

under this order, including but not limited to:

(i) a comprehensive analysis of the barriers to the

full participation of faith-based and other community

organizations in the delivery of social and community services idefitified pursuant to section 3(a) of

this order and the proposed strategies to eliminate

those barriers; and

(ii) a summary of the technical assistance and

other information that will be available to faithbased and other community organizations regarding

the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report, filed pursuant to section 4(a) of this order, shall include annual

performance indicators and measurable objectives for

agency action. Each report filed thereafter shall measure the agency's performance against the objectives set

forth in the initial report.

SEC. 5. Responsibilities of the Secretaries of Commerce

and Veterans Affairs and the Administrator of the Small

Business Administration. The Secretaries and the Administrator shall:

(a) designate an employee within their respective

agencies to serve as the liaison and point of contact

with the White House OFBCI; and

(b) cooperate with the White House OFBCI and provide such information, support, and assistance to the

White House OFBCI as it may request, to the extent

permitted by law.

SEC. 6. Administration and Judicial Review. (a) The

agency actions directed by this executive order shall be

carried out subject to the availability of appropriations

and to the extent permitted by law.

(b) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United

States, its departments, agencies, instrumentalities or

entities, its officers, employees or agents, or any other

person.

GEORGE W. BUSH.

Ex. ORD. No. 13397. RESPONSIBILITIES OF THE DEPARTMENT OF HOMELAND SECURITY WITH RESPECT TO

FAITH-BASED AND COMMUNITY INITIATIVES

Ex. Ord. No. 13397, Mar. 7, 2006, 71 F.R. 12275, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to help the Federal Government

coordinate a national effort to expand opportunities for

faith-based and other community organizations and to

strengthen their capacity to better meet America's social and community needs, it is hereby ordered as follows:

SECTION 1. Establishment of a Center for Faith-Based

and Community Initiatives at the Department of Homeland

Security.

(a) The Secretary of Homeland Security (Secretary)

shall establish within the Department of Homeland Security (Department) a Center for Faith-Based and Community Initiatives (Center).

(b) The Center shall be supervised by a Director appointed by [the] Secretary. The Secretary shall consult

with the Director of the White House Office of FaithBased and Community Initiatives (WHOFBCI Director)

prior to making such appointment.

(c) The Department shall provide the Center with appropriate staff, administrative support, and other resources to meet its responsibilities under this order.

(d) The Center shall begin operations no later than 45

days from the date of this order.

SEC. 2. Purpose of Center. The purpose of the Center

shall be to coordinate agency efforts to eliminate regulatory, contracting, and other programmatic obstacles

to the participation of faith-based and other community organizations in the provision of social and community services.

SEC. 3. Responsibilities of the Center for Faith-Based and

Community Initiatives. In carrying out the purpose set

forth in section 2 of this order, the Center shall:

(a) conduct, in coordination with the WHOFBCI Director, a department-wide audit to identify all existing

barriers to the participation of faith-based and other

community organizations in the delivery of social and

community services by the Department, including but

not limited to regulations, rules, orders, procurement,

and other internal policies and practices, and outreach

activities that unlawfully discriminate against, or

otherwise discourage or disadvantage the participation

of faith-based and other community organizations in

Federal programs;

(b) coordinate a comprehensive departmental effort

to incorporate faith-based and other community organizations in Department programs and initiatives to

the greatest extent possible;

(c) propose initiatives to remove barriers identified

pursuant to section 3(a) of this order, including but not

limited to reform of regulations, procurement, and

other internal policies and practices, and outreach activities;

(d) propose the development of innovative pilot and

demonstration programs to increase the participation

of faith-based and other community organizations in

Federal as well as State and local initiatives; and

(e) develop and coordinate Departmental outreach efforts to disseminate information more effectively to

faith-based and other community organizations with

respect to programming changes, contracting opportunities, and other agency initiatives, including but not

limited to Web and Internet resources.

SEC. 4. Reporting Requirements.

(a) Report. Not later than 180 days from the date of

this order and annually thereafter, the Center shall

prepare and submit a report to the WHOFBCI Director.

(b) Contents. The report shall include a description of

the Department's efforts in carrying out its responsibilities under this order, including but not limited to:

(i) a comprehensive analysis of the barriers to the

full participation of faith-based and other community

organizations in the delivery of social and community services identified pursuant to section 3(a) of

this order and the proposed strategies to eliminate

those barriers; and

(ii) a summary of the technical assistance and

other information that will be available to faithbased and other community organizations regarding

the program activities of the agency and the preparation of applications or proposals for grants, cooperative agreements, contracts, and procurement.

(c) Performance Indicators. The first report shall include annual performance indicators and measurable

objectives for Departmental action. Each report filed

thereafter shall measure the Department's performance

against the objectives set forth in the initial report.

SEC. 5. Responsibilities of the Secretary. The Secretary

shall:

(a) designate an employee within the department to

serve as the liaison and point of contact with the

WHOFBCI Director; and

(b) cooperate with the WHOFBCI Director and provide such information, support, and assistance to the

WHOFBCI Director as requested to implement this

order.

SEC. 6. General Provisions. (a) This order shall be implemented subject to the availability of appropriations

and to the extent permitted by law.

(b) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by a party against the United

Page 815 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

States, its agencies, or entities, its officers, employees,

or agents, or any other person.

GEORGE W. BUSH.

Ex. ORD. No. 13406. PROTECTING THE PROPERTY RIGHTS

OF THE AMERICAN PEOPLE

Ex. Ord. No. 13406, June 23, 2006, 71 F.R. 36973, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and to strengthen the rights of the American

people against the taking of their private property, it

is hereby ordered as follows:

SECTION 1. Policy. It is the policy of the United States

to protect the rights of Americans to their private

property, including by limiting the taking of private

property by the Federal Government to situations in

which the taking is for public use, with just compensation, and for the purpose of benefiting the general public and not merely for the purpose of advancing the economic interest of private parties to be given ownership

or use of the property taken.

SEC. 2. Implementation. (a) The Attorney General

shall:

(i) issue instructions to the heads of departments and

agencies to implement the policy set forth in section 1

of this order; and

(ii) monitor takings by departments and agencies for

compliance with the policy set forth in section 1 of this

order.

(b) Heads of departments and agencies shall, to the

extent permitted by law:

(i) comply with instructions issued under subsection

(a)(i); and

(ii) provide to the Attorney General such information

as the Attorney General determines necessary to carry

out subsection (a)(ii).

SEC. 3. Specific Exclusions. Nothing in this order shall

be construed to prohibit a taking of private property by

the Federal Government, that otherwise complies with

applicable law, for the purpose of:

(a) public ownership or exclusive use of the property

by the public, such as for a public medical facility,

roadway, park, forest, governmental office building, or

military reservation;

(b) projects designated for public, common carrier,

public transportation, or public utility use, including

those for which a fee is assessed, that serve the general

public and are subject to regulation by a governmental

entity;

(c) conveying the property to a nongovernmental entity, such as a telecommunications or transportation

common carrier, that makes the property available for

use by the general public as of right;

(d) preventing or mitigating a harmful use of land

that constitutes a threat to public health, safety, or

the environment;

(e) acquiring abandoned property;

(f) quieting title to real property;

(g) acquiring ownership or use by a public utility;

(h) facilitating the disposal or exchange of Federal

property; or

(i) meeting military, law enforcement, public safety,

public transportation, or public health emergencies.

SEC. 4. General Provisions. (a) This order shall be implemented consistent with applicable law and subject

to the availability of appropriations.

(b) Nothing in this order shall be construed to impair

or otherwise affect:

(i) authority granted by law to a department or agency or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budget, administrative, or

legislative proposals.

(c) This order shall be implemented in a manner consistent with Executive Order 12630 of March 15, 1988.

(d) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its

departments, agencies, entities, officers, employees, or

agents, or any other person.

GEORGE W. BUSH.

EX. ORD. No. 13497. REVOCATION OF CERTAIN EXECUTIVE

ORDERS CONCERNING REGULATORY PLANNING AND REVIEW

Ex. Ord. No. 13497, Jan. 30, 2009, 74 F.R. 6113, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, it is hereby ordered that:

SECTION 1. Executive Order 13258 of February 26, 2002,

and Executive Order 13422 of January 18, 2007, concerning regulatory planning and review, which amended Executive Order 12866 of September 30, 1993, are revoked.

SEC. 2. The Director of the Office of Management and

Budget and the heads of executive departments and

agencies shall promptly rescind any orders, rules, regulations, guidelines, or policies implementing or enforcing Executive Order 13258 or Executive Order 13422, to

the extent consistent with law.

SEC. 3. This order is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other

person.

BARACK OBAMA.

Ex. ORD. No. 13563. IMPROVING REGULATION AND

REGULATORY REVIEW

Ex. Ord. No. 13563, Jan. 18, 2011, 76 F.R. 3821, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:

SECTION 1. General Principles of Regulation. (a) Our regulatory system must protect public health, welfare,

safety, and our environment while promoting economic

growth, innovation, competitiveness, and job creation.

It must be based on the best available science. It must

allow for public participation and an open exchange of

ideas. It must promote predictability and reduce uncertainty. It must identify and use the best, most innovative, and least burdensome tools for achieving regulatory ends. It must take into account benefits and

costs, both quantitative and qualitative. It must ensure

that regulations are accessible, consistent, written in

plain language, and easy to understand. It must measure, and seek to improve, the actual results of regulatory requirements.

(b) This order is supplemental to and reaffirms the

principles, structures, and definitions governing contemporary regulatory review that were established in

Executive Order 12866 of September 30, 1993. As stated

in that Executive Order and to the extent permitted by

law, each agency must, among other things: (1) propose

or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that

some benefits and costs are difficult to quantify); (2)

tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives,

taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;

(3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits

(including potential economic, environmental, public

health and safety, and other advantages; distributive

impacts; and equity); (4) to the extent feasible, specify

performance objectives, rather than specifying the behavior or manner of compliance that regulated entities

must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior,

such as user fees or marketable permits, or providing

information upon which choices can be made by the

public.

(c) In applying these principles, each agency is directed to use the best available techniques to quantify

anticipated present and future benefits and costs as ac-

§ 601 Page 816
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

curately as possible. Where appropriate and permitted

by law, each agency may consider (and discuss qualitatively) values that are difficult or impossible to

quantify, including equity, human dignity, fairness,

and distributive impacts.

SEC. 2. Public Participation. (a) Regulations shall be

adopted through a process that involves public participation. To that end, regulations shall be based, to the

extent feasible and consistent with law, on the open exchange of information and perspectives among State,

local, and tribal officials, experts in relevant disciplines, affected stakeholders in the private sector,

and the public as a whole.

(b) To promote that open exchange, each agency, consistent with Executive Order 12866 and other applicable

legal requirements, shall endeavor to provide the public with an opportunity to participate in the regulatory

process. To the extent feasible and permitted by law,

each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that should

generally be at least 60 days. To the extent feasible and

permitted by law, each agency shall also provide, for

both proposed and final rules, timely online access to

the rulemaking docket on regulations.gov, including

relevant scientific and technical findings, in an open

format that can be easily searched and downloaded. For

proposed rules, such access shall include, to the extent

feasible and permitted by law, an opportunity for public comment on all pertinent parts of the rulemaking

docket, including relevant scientific and technical findings.

(c) Before issuing a notice of proposed rulemaking,

each agency, where feasible and appropriate, shall seek

the views of those who are likely to be affected, including those who are likely to benefit from and those who

are potentially subject to such rulemaking.

SEC. 3. Integration and Innovation. Some sectors and

industries face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Greater coordination across

agencies could reduce these requirements, thus reducing costs and simplifying and harmonizing rules. In developing regulatory actions and identifying appropriate

approaches, each agency shall attempt to promote such

coordination, simplification, and harmonization. Each

agency shall also seek to identify, as appropriate,

means to achieve regulatory goals that are designed to

promote innovation.

SEC. 4. Flexible Approaches. Where relevant, feasible,

and consistent with regulatory objectives, and to the

extent permitted by law, each agency shall identify and

consider regulatory approaches that reduce burdens

and maintain flexibility and freedom of choice for the

public. These approaches include warnings, appropriate

default rules, and disclosure requirements as well as

provision of information to the public in a form that is

clear and intelligible.

SEC. 5. Science. Consistent with the President's

Memorandum for the Heads of Executive Departments

and Agencies, "Scientific Integrity" (March 9, 2009),

and its implementing guidance, each agency shall ensure the objectivity of any scientific and technological

information and processes used to support the agency's

regulatory actions.

SEC. 6. Retrospective Analyses of Existing Rules. (a) To

facilitate the periodic review of existing significant

regulations, agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal

them in accordance with what has been learned. Such

retrospective analyses, including supporting data,

should be released online whenever possible.

(b) Within 120 days of the date of this order, each

agency shall develop and submit to the Office of Information and Regulatory Affairs a preliminary plan, consistent with law and its resources and regulatory priorities, under which the agency will periodically review

its existing significant regulations to determine whether any such regulations should be modified, streamlined, expanded, or repealed so as to make the agency's

regulatory program more effective or less burdensome

in achieving the regulatory objectives.

SEC. 7. General Provisions. (a) For purposes of this

order, "agency" shall have the meaning set forth in

section 3(b) of Executive Order 12866.

(b) Nothing in this order shall be construed to impair

or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with

applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the

United States, its departments, agencies, or entities,

its officers, employees, or agents, or any other person.

BARACK OBAMA.

Ex. ORD. No. 13579. REGULATION AND INDEPENDENT

REGULATORY AGENCIES

Ex. Ord. No. 13579, July 11, 2011, 76 F.R. 41587, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to improve regulation and regulatory review, it is hereby ordered as follows:

SECTION 1. Policy. (a) Wise regulatory decisions depend on public participation and on careful analysis of

the likely consequences of regulation. Such decisions

are informed and improved by allowing interested

members of the public to have a meaningful opportunity to participate in rulemaking. To the extent permitted by law, such decisions should be made only after

consideration of their costs and benefits (both quantitative and qualitative).

(b) Executive Order 13563 of January 18, 2011, "Improving Regulation and Regulatory Review," directed

to executive agencies, was meant to produce a regulatory system that protects "public health, welfare,

safety, and our environment while promoting economic

growth, innovation, competitiveness, and job creation." Independent regulatory agencies, no less than

executive agencies, should promote that goal.

(c) Executive Order 13563 set out general requirements directed to executive agencies concerning public

participation, integration and innovation, flexible approaches, and science. To the extent permitted by law,

independent regulatory agencies should comply with

these provisions as well.

SEC. 2. Retrospective Analyses of Existing Rules. (a) To

facilitate the periodic review of existing significant

regulations, independent regulatory agencies should

consider how best to promote retrospective analysis of

rules that may be outmoded, ineffective, insufficient,

or excessively burdensome, and to modify, streamline,

expand, or repeal them in accordance with what has

been learned. Such retrospective analyses, including

supporting data and evaluations, should be released online whenever possible.

(b) Within 120 days of the date of this order, each

independent regulatory agency should develop and release to the public a plan, consistent with law and reflecting its resources and regulatory priorities and

processes, under which the agency will periodically review its existing significant regulations to determine

whether any such regulations should be modified,

streamlined, expanded, or repealed so as to make the

agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

SEC. 3. General Provisions. (a) For purposes of this

order, "executive agency" shall have the meaning set

forth for the term "agency" in section 3(b) of Executive

Order 12866 of September 30, 1993, and "independent regPage 817 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

ulatory agency" shall have the meaning set forth in 44

U.S.C. 3502(5).

(b) Nothing in this order shall be construed to impair

or otherwise affect:

(i) authority granted by law to a department or agency, or the head thereof; or

(ii) functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with

applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the

United States, its departments, agencies, or entities,

its officers, employees, or agents, or any other person.

BARACK OBAMA.

Ex. ORD. No. 13604. IMPROVING PERFORMANCE OF FEDERAL PERMITTING AND REVIEW OF INFRASTRUCTURE

PROJECTS

Ex. Ord. No. 13604, Mar. 22, 2012, 77 F.R. 18887, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to significantly reduce the aggregate time required to make decisions in the permitting and review of infrastructure projects by the Federal Government, while improving environmental and

community outcomes, it is hereby ordered as follows:

SECTION 1. Policy. (a) To maintain our Nation's competitive edge and ensure an economy built to last, the

United States must have fast, reliable, resilient, and

environmentally sound means of moving people, goods,

energy, and information. In a global economy, we will

compete for the world's investments based in significant part on the quality of our infrastructure. Investing in the Nation's infrastructure provides immediate

and long-term economic benefits for local communities

and the Nation as a whole.

The quality of our Nation's infrastructure depends in

critical part on Federal permitting and review processes, including planning, approval, and consultation

processes. These processes inform decision-makers and

affected communities about the potential benefits and

impacts of proposed infrastructure projects, and ensure

that projects are designed, built, and maintained in a

manner that is consistent with protecting our public

health, welfare, safety, national security, and environment. Reviews and approvals of infrastructure projects

can be delayed due to many factors beyond the control

of the Federal Government, such as poor project design,

incomplete applications, uncertain funding, or multiple

reviews and approvals by State, local, tribal, or other

jurisdictions. Given these factors, it is critical that executive departments and agencies (agencies) take, all

steps within their authority, consistent with available

resources, to execute Federal permitting and review

processes with maximum efficiency and effectiveness,

ensuring the health, safety, and security of communities and the environment while supporting vital economic growth.

To achieve that objective, our Federal permitting

and review processes must provide a transparent, consistent, and predictable path for both project sponsors

and affected communities. They must ensure that agencies set and adhere to timelines and schedules for completion of reviews, set clear permitting performance

goals, and track progress against those goals. They

must encourage early collaboration among agencies,

project sponsors, and affected stakeholders in order to

incorporate and address their interests and minimize

delays. They must provide for transparency and accountability by utilizing cost-effective information

technology to collect and disseminate information

about individual projects and agency performance, so

that the priorities and concerns of all our citizens are

considered. They must rely upon early and active consultation with State, local, and tribal governments to

avoid conflicts or duplication of effort, resolve concerns, and allow for concurrent rather than sequential

reviews. They must recognize the critical role project

sponsors play in assuring the timely and cost-effective

review of projects by providing complete information

and analysis and by supporting, as appropriate, the

costs associated with review. And, they must enable

agencies to share priorities, work collaboratively and

concurrently to advance reviews and permitting decisions, and facilitate the resolution of disputes at all

levels of agency organization.

Each of these elements must be incorporated into

routine agency practice to provide demonstrable improvements in the performance of Federal infrastructure permitting and review processes, including lower

costs, more timely decisions, and a healthier and cleaner environment. Also, these elements must be integrated into project planning processes so that projects

are designed appropriately to avoid, to the extent practicable, adverse impacts on public health, security, historic properties and other cultural resources, and the

environment, and to minimize or mitigate impacts that

may occur. Permitting and review process improvements that have proven effective must be expanded and

institutionalized.

(b) In advancing this policy, this order expands upon

efforts undertaken pursuant to Executive Order 13580 of

July 12, 2011 (Interagency Working Group on Coordination of Domestic Energy Development and Permitting

in Alaska), Executive Order 13563 of January 18, 2011

(Improving Regulation and Regulatory Review), and

my memorandum of August 31, 2011 (Speeding Infrastructure Development Through More Efficient and Effective Permitting and Environmental Review), as well

as other ongoing efforts.

SEC. 2. Steering Committee on Federal Infrastructure

Permitting and Review Process Improvement. There is established a Steering Committee on Federal Infrastructure Permitting and Review Process Improvement

(Steering Committee), to be chaired by the Chief Performance Officer (CPO), in consultation with the Chair

of the Council on Environmental Quality (CEQ).

(a) Infrastructure Projects Covered by this Order. The

Steering Committee shall facilitate improvements in

Federal permitting and review processes for infrastructure projects in sectors including surface transportation, aviation, ports and waterways, water resource

projects, renewable energy generation, electricity

transmission, broadband, pipelines, and other such sectors as determined by the Steering Committee.

(b) Membership. Each of the following agencies (Member Agencies) shall be represented on the Steering

Committee by a Deputy Secretary or equivalent officer

of the United States:

(i) the Department of Defense;

(ii) the Department of the Interior;

(iii) the Department of Agriculture;

(iv) the Department of Commerce;

(v) the Department of Transportation;

(vi) the Department of Energy;

(vii) the Department of Homeland Security;

(viii) the Environmental Protection Agency;

(ix) the Advisory Council on Historic Preservation;

(x) the Department of the Army; and

(xi) such other agencies or offices as the CPO may invite to participate.

(c) Projects of National or Regional Significance. In furtherance of the policies of this order, the Member

Agencies shall coordinate and consult with each other

to select, submit to the CPO by April 30, 2012, and periodically update thereafter, a list of infrastructure

projects of national or regional significance that will

have their status tracked on the online Federal Infrastructure Projects Dashboard (Dashboard) created pursuant to my memorandum of August 31, 2011.

(d) Responsibilities of the Steering Committee. The Steering Committee shall:

(i) develop a Federal Permitting and Review Performance Plan (Federal Plan), as described in section 3(a) of

this order;

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TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

(ii) implement the Federal Plan and coordinate resolution of disputes among Member Agencies relating to

implementation of the Federal Plan; and

(iii) coordinate and consult with other agencies, offices, and interagency working groups as necessary, including the President's Management Council and Performance Improvement Councils, and, with regard to

use and expansion of the Dashboard, the Chief Information Officer (CIO) and Chief Technology Officer to implement this order.

(e) Duties of the CPO. The CPO shall:

(i) in consultation with the Chair of CEQ and Member

Agencies, issue guidance on the implementation of this

order;

(ii) in consultation with Member Agencies, develop

and track performance metrics for evaluating implementation of the Federal Plan and Agency Plans; and

(iii) by January 31, 2013, and annually thereafter,

after input from interested agencies, evaluate and report to the President on the implementation of the

Federal Plan and Agency Plans, and publish the report

on the Dashboard.

(f) No Involvement in Particular Permits or Projects. Neither the Steering Committee, nor the CPO, may direct

or coordinate agency decisions with respect to any particular permit or project.

SEC. 3. Plans for Measurable Performance Improvement.

(a) By May 31, 2012, the Steering Committee shall, following coordination with Member Agencies and other

interested agencies, develop and publish on the Dashboard a Federal Plan to significantly reduce the aggregate time required to make Federal permitting and review decisions on infrastructure projects while improving outcomes for communities and the environment.

The Federal Plan shall include, but not be limited to,

the following actions to implement the policies outlined in section 1 of this order, and shall reflect the

agreement of any Member Agency with respect to requirements in the Federal Plan affecting such agency:

(i) institutionalizing best practices for: enhancing

Federal, State, local, and tribal government coordination on permitting and review processes (such as conducting reviews concurrently rather than sequentially

to the extent practicable); avoiding duplicative reviews; and engaging with stakeholders early in the permitting process;

(ii) developing mechanisms to better communicate

priorities and resolve disputes among agencies at the

national and regional levels;

(iii) institutionalizing use of the Dashboard, working

with the CIO to enhance the Dashboard, and utilizing

other cost-effective information technology systems to

share environmental and project-related information

with the public, project sponsors, and permit reviewers;

and

(iv) identifying timeframes and Member Agency responsibilities for the implementation of each proposed

action.

(b) Each Member Agency shall:

(i) by June 30, 2012, submit to the CPO an Agency

Plan identifying those permitting and review processes

the Member Agency views as most critical to significantly reducing the aggregate time required to make

permitting and review decisions on infrastructure

projects while improving outcomes for commlunities

and the environment, and describing specific and measurable actions the agency will take to improve these

processes, including:

(1) performance metrics, including timelines or

schedules for review;

(2) technological improvements, such as institutionalized use of the Dashboard and other information technology systems;

(3) other practices, such as pre-application procedures, early collaboration with other agencies,

project sponsors, and affected stakeholders, and coordination with State, local, and tribal governments;

and

(4) steps the Member Agency will take to implement the Federal Plan.

(ii) by July 31, 2012, following coordination with other

Member Agencies and interested agencies, publish its

Agency Plan on the Dashboard; and

(iii) by December 31, 2012, and every 6 months thereafter, report progress to the CPO on implementing its

Agency Plan, as well as specific opportunities for additional improvements to its permitting and review procedures.

SEC. 4. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to an executive department, agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of appropriations.

(c) This order shall be implemented consistent with

Executive Order 13175 of November 6, 2000 (Consultation

and Coordination with Indian Tribal Governments) and

my memorandum of November 5, 2009 (Tribal Consultation).

(d) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the

United States, its departments, agencies, or entities,

its officers, employees, or agents, or any other person.

BARACK OBAMA.

Ex. ORD. No. 13609. PROMOTING INTERNATIONAL

REGULATORY COOPERATION

Ex. Ord. No. 13609, May 1, 2012, 77 F.R. 26413, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to promote international regulatory cooperation, it is hereby ordered as follows:

SECTION 1. Policy. Executive Order 13563 of January 18,

2011 (Improving Regulation and Regulatory Review),

states that our regulatory system must protect public

health, welfare, safety, and our environment while promoting economic growth, innovation, competitiveness,

and job creation. In an increasingly global economy,

international regulatory cooperation, consistent with

domestic law and prerogatives and U.S. trade policy,

can be an important means of promoting the goals of

Executive Order 13563.

The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory

agencies to address similar issues. In some cases, the

differences between the regulatory approaches of U.S.

agencies and those of their foreign counterparts might

not be necessary and might impair the ability of American businesses to export and compete internationally.

In meeting shared challenges involving health, safety,

labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that

are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in

regulatory requirements.

SEC. 2. Coordination of International Regulatory Cooperation. (a) The Regulatory Working Group (Working

Group) established by Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), which

was reaffirmed by Executive Order 13563, shall, as appropriate:

(i) serve as a forum to discuss, coordinate, and develop a common understanding among agencies of U.S.

Government positions and priorities with respect to: (A) international regulatory cooperation activities

that are reasonably anticipated to lead to significant

regulatory actions;

(B) efforts across the Federal Government to support significant, cross-cutting international regulatory cooperation activities, such as the work of regulatory cooperation councils; and

(C) the promotion of good regulatory practices

internationally, as well as the promotion of U.S. regulatory approaches, as appropriate; and

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TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(ii) examine, among other things:

(A) appropriate strategies for engaging in the development of regulatory approaches through international regulatory cooperation, particularly in

emerging technology areas, when consistent with section 1 of this order;

(B) best practices for international regulatory cooperation with respect to regulatory development,

and, where appropriate, information exchange and

other regulatory tools; and

(C) factors that agencies should take into account

when determining whether and how to consider other

regulatory approaches under section 3(d) of this

order.

(b) As Chair of the Working Group, the Administrator

of the Office of Information and Regulatory Affairs

(OIRA) of the Office of Management and Budget (OMB)

shall convene the Working Group as necessary to discuss international regulatory cooperation issues as described above, and the Working Group shall include a

representative from the Office of the United States

Trade Representative and, as appropriate, representatives from other agencies and offices.

(c) The activities of the Working Group, consistent

with law, shall not duplicate the efforts of existing

interagency bodies and coordination mechanisms. The

Working Group shall consult with existing interagency

bodies when appropriate.

(d) To inform its discussions, and pursuant to section

4 of Executive Order 12866, the Working Group may

commission analytical reports and studies by OIRA,

the Administrative Conference of the United States, or

any other relevant agency, and the Administrator of

OIRA may solicit input, from time to time, from representatives of business, nongovernmental organizations, and the public.

(e) The Working Group shall develop and issue guidelines on the applicability and implementation of sections 2 through 4 of this order.

(f) For purposes of this order, the Working Group

shall operate by consensus.

SEC. 3. Responsibilities of Federal Agencies. To the extent permitted by law, and consistent with the principles and requirements of Executive Order 13563 and

Executive Order 12866, each agency shall:

(a) if required to submit a Regulatory Plan pursuant

to Executive Order 12866, include in that plan a summary of its international regulatory cooperation activities that are reasonably anticipated to lead to significant regulations, with an explanation of how these

activities advance the purposes of Executive Order

13563 and this order;

(b) ensure that significant regulations that the agency identifies as having significant international impacts are designated as such in the Unified Agenda of

Federal Regulatory and Deregulatory Actions, on

RegInfo.gov, and on Regulations.gov;

(c) in selecting which regulations to include in its

retrospective review plan, as required by Executive

Order 13563, consider:

(i) reforms to existing significant regulations that

address unnecessary differences in regulatory requirements between the United States and its major trading

partners, consistent with section 1 of this order, when

stakeholders provide adequate information to the agency establishing that the differences are unnecessary;

and

(ii) such reforms in other circumstances as the agency deems appropriate; and

(d) for significant regulations that the agency identifies as having significant international impacts, consider, to the extent feasible, appropriate, and consistent with law, any regulatory approaches by a foreign

government that the United States has agreed to consider under a regulatory cooperation council work plan.

SEC. 4. Definitions. For purposes of this order:

(a) "Agency" means any authority of the United

States that is an "agency" under 44 U.S.C. 3502(1),

other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(b) "International impact" is a direct effect that a

proposed or final regulation is expected to have on

international trade and investment, or that otherwise

may be of significant interest to the trading partners of

the United States.

(c) "International regulatory cooperation" refers to a

bilateral, regional, or multilateral process, other than

processes that are covered by section 6(a)(ii), (iii), and

(v) of this order, in which national governments engage

in various forms of collaboration and communication

with respect to regulations, in particular a process that

is reasonably anticipated to lead to the development of

significant regulations.

(d) "Regulation" shall have the same meaning as "regulation" or "rule" in section 3(d) of Executive

Order 12866.

(e) "Significant regulation" is a proposed or final

regulation that constitutes a significant regulatory action.

(f) "Significant regulatory action" shall have the

same meaning as in section 3(f) of Executive Order

12866.

SEC. 5. Independent Agencies. Independent regulatory

agencies are encouraged to comply with the provisions

of this order.

SEC. 6. General Provisions. (a) Nothing in this order

shall be construed to impair or otherwise affect:

(i) the authority granted by law to a department or

agency, or the head thereof;

(ii) the coordination and development of international trade policy and negotiations pursuant to section 411 of the Trade Agreements Act of 1979 (19 U.S.C.

2451 [2541]) and section 141 of the Trade Act of 1974 (19

U.S.C. 2171);

(iii) international trade activities undertaken pursuant to section 3 of the Act of February 14, 1903 (15

U.S.C. 1512), subtitle C of the Export Enhancement Act

of 1988, as amended (15 U.S.C. 4721 et seq.), and Reorganization Plan No. 3 of 1979 (19 U.S.C. 2171 note);

(iv) the authorization process for the negotiation and

conclusion of international agreements pursuant to 1

U.S.C. 112b(c) and its implementing regulations (22

C.F.R. 181.4) and implementing procedures (11 FAM

720);

(v) activities in connection with subchapter II of

chapter 53 of title 31 of the United States Code, title 26

of the United States Code, or Public Law 111-203 and

other laws relating to financial regulation; or (vi) [sic]

the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with

applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the

United States, its departments, agencies, or entities,

its officers, employees, or agents, or any other person.

BARACK OBAMA.

EX. ORD. No. 13610. IDENTIFYING AND REDUCING

REGULATORY BURDENS

Ex. Ord. No. 13610, May 10, 2012, 77 F.R. 28469, provided:

By the authority vested in me as President by the

Constitution and the laws of the United States of

America, and in order to modernize our regulatory system and to reduce unjustified regulatory burdens and

costs, it is hereby ordered as follows:

SECTION 1. Policy. Regulations play an indispensable

role in protecting public health, welfare, safety, and

our environment, but they can also impose significant

burdens and costs. During challenging economic times,

we should be especially careful not to impose unjustified regulatory requirements. For this reason, it is particularly important for agencies to conduct retrospective analyses of existing rules to examine whether they

remain justified and whether they should be modified

or streamlined in light of changed circumstances, including the rise of new technologies.

§ 601 Page 820
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

Executive Order 13563 of January 18, 2011 (Improving

Regulation and Regulatory Review), states that our

regulatory system "must measure, and seek to improve, the actual results of regulatory requirements."

To promote this goal, that Executive Order requires

agencies not merely to conduct a single exercise, but to

engage in "periodic review of existing significant regulations." Pursuant to section 6(b) of that Executive

Order, agencies are required to develop retrospective

review plans to review existing significant regulations

in order to "determine whether any such regulations

should be modified, streamlined, expanded, or repealed." The purpose of this requirement is to "make

the agency's regulatory program more effective or less

burdensome in achieving the regulatory objectives."

In response to Executive Order 13563, agencies have

developed and made available for public comment retrospective review plans that identify over five hundred

initiatives. A small fraction of those initiatives, already finalized or formally proposed to the public, are

anticipated to eliminate billions of dollars in regulatory costs and tens of millions of hours in annual paperwork burdens. Significantly larger savings are anticipated as the plans are implemented and as action is

taken on additional initiatives.

As a matter of longstanding practice and to satisfy

statutory obligations, many agencies engaged in periodic review of existing regulations prior to the issuance

of Executive Order 13563. But further steps should be

taken, consistent with law, agency resources, and regulatory priorities, to promote public participation in

retrospective review, to modernize our regulatory system, and to institutionalize regular assessment of significant regulations.

SEC. 2. Public Participation in Retrospective Review.

Members of the public, including those directly and indirectly affected by regulations, as well as State, local,

and tribal governments, have important information

about the actual effects of existing regulations. For

this reason, and consistent with Executive Order 13563,

agencies shall invite, on a regular basis (to be determined by the agency head in consultation with the Office of Information and Regulatory Affairs (OIRA)),

public suggestions about regulations in need of retrospective review and about appropriate modifications to

such regulations. To promote an open exchange of information, retrospective analyses of regulations, including supporting data, shall be released to the public

online wherever practicable.

SEC. 3. Setting Priorities. In implementing and improving their retrospective review plans, and in considering

retrospective review suggestions from the public, agencies shall give priority, consistent with law, to those

initiatives that will produce significant quantifiable

monetary savings or significant quantifiable reductions

in paperwork burdens while protecting public health,

welfare, safety, and our environment. To the extent

practicable and permitted by law, agencies shall also

give special consideration to initiatives that would reduce unjustified regulatory burdens or simplify or harmonize regulatory requirements imposed on small businesses. Consistent with Executive Order 13563 and Executive Order 12866 of September 30, 1993 (Regulatory

Planning and Review), agencies shall give consideration to the cumulative effects of their own regulations, including cumulative burdens, and shall to the

extent practicable and consistent with law give priority to reforms that would make significant progress in

reducing those burdens while protecting public health,

welfare, safety, and our environment.

SEC. 4. Accountability. Agencies shall regularly report

on the status of their retrospective review efforts to

OIRA. Agency reports should describe progress, anticipated accomplishments, and proposed timelines for relevant actions, with an emphasis on the priorities described in section 3 of this order. Agencies shall submit

draft reports to OIRA on September 10, 2012, and on the

second Monday of January and July for each year

thereafter, unless directed otherwise through subsequent guidance from OIRA. Agencies shall make final

reports available to the public within a reasonable period (not to exceed three weeks from the date of submission of draft reports to OIRA).

SEC. 5. General Provisions. (a) For purposes of this

order, "agency" means any authority of the United

States that is an "agency" under 44 U.S.C. 3502(1),

other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(b) Nothing in this order shall be construed to impair

or otherwise affect:

(i) the authority granted by law to a department or

agency, or the head thereof; or

(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.

(c) This order shall be implemented consistent with

applicable law and subject to the availability of appropriations.

(d) This order is not intended to, and does not, create

any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the

United States, its departments, agencies, or entities,

its officers, employees, or agents, or any other person.

BARACK OBAMA.

REGULATORY REFORM-WAIVER OF PENALTIES AND

REDUCTION OF REPORTS

Memorandum of President of the United States, Apr.

21, 1995, 60 F.R. 20621, provided:

Memorandum for

The Secretary of State

The Secretary of the Treasury

The Secretary of Defense

The Attorney General

The Secretary of the Interior

The Secretary of Agriculture

The Secretary of Commerce

The Secretary of Labor

The Secretary of Health and Human Services

The Secretary of Housing and Urban Development

The Secretary of Transportation

The Secretary of Energy

The Secretary of Education

The Secretary of Veterans Affairs

The Administrator, Environmental Protection

Agency

The Administrator, Small Business Administration

The Secretary of the Army

The Secretary of the Navy

The Secretary of the Air Force

The Director, Federal Emergency Management

Agency

The Administrator, National Aeronautics and Space

Administration

The Director, National Science Foundation

The Acting Archivist of the United States

The Administrator of General Services

The Chair, Railroad Retirement Board

The Chairperson, Architectural and Transportation

Barriers Compliance Board

The Executive Director, Pension Benefit Guaranty

Corporation

On March 16, I announced that the Administration

would implement new policies to give compliance officials more flexibility in dealing with small business

and to cut back on paperwork. These Governmentwide

policies, as well as the specific agency actions I announced, are part of this Administration's continuing

commitment to sensible regulatory reform. With your

help and cooperation, we hope to move the Government

toward a more flexible, effective, and user friendly approach to regulation.

A. Actions: This memorandum directs the designated

department and agency heads to implement the policies set forth below.

1. Authority to Waive Penalties. (a) To the extent permitted by law, each agency shall use its discretion to

modify the penalties for small businesses in the following situations. Agencies shall exercise their enforcePage 821 § 601
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

ment discretion to waive the imposition of all or a portion of a penalty when the violation is corrected within

a time period appropriate to the violation in question.

For those violations that may take longer to correct

than the period set by the agency, the agency shall use

its enforcement discretion to waive up to 100 percent of

the financial penalties if the amounts waived are used

to bring the entity into compliance. The provisions in

paragraph l(a) of this memorandum shall apply only

where there has been a good faith effort to comply with

applicable regulations and the violation does not involve criminal wrongdoing or significant threat to

health, safety, or the environment.

(b) Each agency shall, by June 15, 1995, submit a plan

to the Director of the Office of Management and Budget

("Director") describing the actions it will take to implement the policies in paragraph 1(a) of this memorandum. The plan shall provide that the agency will implement the policies described in paragraph l(a) of this

memorandum on or before July 14, 1995. Plans should

include information on how notification will be given

to frontline workers and small businesses.

2. Cutting Frequency of Reports. (a) Each agency shall

reduce by one-half the frequency of the regularly

scheduled reports that the public is required, by rule or

by policy, to provide to the Government (from quarterly to semiannually, from semiannually to annually,

etc.), unless the department or agency head determines

that such action is not legally permissible; would not

adequately protect health, safety, or the environment;

would be inconsistent with achieving regulatory flexibility or reducing regulatory burdens; or would impede

the effective administration of the agency's program.

The duty to make such determinations shall be nondelegable.

(b) Each agency shall, by June 15, 1995, submit a plan

to the Director describing the actions it will take to

implement the policies in paragraph 2(a), including a

copy of any determination that certain reports are excluded.

B. Application and Scope: 1. The Director may issue

further guidance as necessary to carry out the purposes

of this memorandum.

2. This memorandum does not apply to matters related to law enforcement, national security, or foreign affairs, the importation or exportation of prohibited or

restricted items, Government taxes, duties, fees, revenues, or receipts; nor does it apply to agencies (or components thereof) whose principal purpose is the collection, analysis, and dissemination of statistical information.

3. This memorandum is not intended, and should not

be construed, to create any right or benefit, substantive or procedural, enforceable at law by a party

against the United States, its agencies, its officers, or

its employees.

4. The Director of the Office of Management and

Budget is authorized and directed to publish this

memorandum in the Federal Register.

WILLIAM J. CLINTON.

[References to the Director of the Federal Emergency

Management Agency to be considered to refer and

apply to the Administrator of the Federal Emergency

Management Agency, see section 612(c) of Pub. L.

109-295, set out as a note under section 313 of Title 6,

Domestic Security.]

PLAIN LANGUAGE IN GOVERNMENT WRITING

Memorandum of President of the United States, June

1, 1998, 63 F.R. 31885, provided:

Memorandum for the Heads of Executive Departments and Agencies

The Vice President and I have made reinventing the

Federal Government a top priority of my Administration. We are determined to make the Government more

responsive, accessible, and understandable in its communications with the public.

The Federal Government's writing must be in plain

language. By using plain language, we send a clear message about what the Government is doing, what it requires, and what services it offers. Plain language saves

the Government and the private sector time, effort, and

money.

Plain language requirements vary from one document to another, depending on the intended audience.

Plain language documents have logical organization,

easy-to-read design features, and use:

" common, everyday words, except for necessary technical terms;

* "you" and other pronouns;

* the active voice; and

* short sentences.

To ensure the use of plain language, I direct you to

do the following:

* By October 1, 1998, use plain language in all new

documents, other than regulations, that explain

how to obtain a benefit or service or how to comply

with a requirement you administer or enforce. For

example, these documents may include letters,

forms, notices, and instructions. By January 1, 2002,

all such documents created prior to October 1, 1998,

must also be in plain language.

* By January 1, 1999, use plain language in all proposed and final rulemaking documents published in

the Federal Register, unless you proposed the rule

before that date. You should consider rewriting existing regulations in plain language when you have

the opportunity and resources to do so.

The National Partnership for Reinventing Government will issue guidance to help you comply with these

directives and to explain more fully the elements of

plain language. You should also use customer feedback

and common sense to guide your plain language efforts.

I ask the independent agencies to comply with these

directives.

This memorandum does not confer any right or benefit enforceable by law against the United States or its

representatives. The Director of the Office of Management and Budget will publish this memorandum in the

Federal Register.

WILLIAM J. CLINTON.

PREEMPTION

Memorandum of President of the United States, May

20, 2009, 74 F.R. 24693, provided:

Memorandum for the Heads of Executive Departments and Agencies

From our Nation's founding, the American constitutional order has been a Federal system, ensuring a

strong role for both the national Government and the

States. The Federal Government's role in promoting

the general welfare and guarding individual liberties is

critical, but State law and national law often operate

concurrently to provide independent safeguards for the

public. Throughout our history, State and local governments have frequently protected health, safety, and the

environment more aggressively than has the national

Government.

An understanding of the important role of State governments in our Federal system is reflected in longstanding practices by executive departments and agencies, which have shown respect for the traditional prerogatives of the States. In recent years, however, notwithstanding Executive Order 13132 of August 4, 1999

(Federalism), executive departments and agencies have

sometimes announced that their regulations preempt

State law, including State common law, without explicit preemption by the Congress or an otherwise sufficient basis under applicable legal principles.

The purpose of this memorandum is to state the general policy of my Administration that preemption of

State law by executive departments and agencies

should be undertaken only with full consideration of

the legitimate prerogatives of the States and with a

sufficient legal basis for preemption. Executive departments and agencies should be mindful that in our Federal system, the citizens of the several States have distinctive circumstances and values, and that in many

§ 601 Page 822
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

instances it is appropriate for them to apply to themselves rules and principles that reflect these circumstances and values. As Justice Brandeis explained more

than 70 years ago, "[i]t is one of the happy incidents of

the federal system that a single courageous state may,

if its citizens choose, serve as a laboratory; and try

novel social and economic experiments without risk to

the rest of the country."

To ensure that executive departments and agencies

include statements of preemption in regulations only

when such statements have a sufficient legal basis:

1. Heads of departments and agencies should not include in regulatory preambles statements that the department or agency intends to preempt State law

through the regulation except where preemption provisions are also included in the codified regulation.

2. Heads of departments and agencies should not include preemption provisions in codified regulations except where such provisions would be justified under

legal principles governing preemption, including the

principles outlined in Executive Order 13132.

3. Heads of departments and agencies should review

regulations issued within the past 10 years that contain

statements in regulatory preambles or codified provisions intended by the department or agency to preempt

State law, in order to decide whether such statements

or provisions are justified under applicable legal principles governing preemption. Where the head of a department or agency determines that a regulatory statement of preemption or codified regulatory provision

cannot be so justified, the head of that department or

agency should initiate appropriate action, which may

include amendment of the relevant regulation.

Executive departments and agencies shall carry out

the provisions of this memorandum to the extent permitted by law and consistent with their statutory authorities. Heads of departments and agencies should

consult as necessary with the Attorney General and the

Office of Management and Budget's Office of Information and Regulatory Affairs to determine how the requirements of this memorandum apply to particular

situations.

This memorandum is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other

person.

The Director of the Office of Management and Budget

is authorized and directed to publish this memorandum

in the Federal Register.

BARACK OBAMA.

REGULATORY COMPLIANCE

Memorandum of President of the United States, Jan.

18, 2011, 76 F.R. 3825, provided:

Memorandum for the Heads of Executive Departments and Agencies

My Administration is committed to enhancing effectiveness and efficiency in Government. Pursuant to the

Memorandum on Transparency and Open Government,

issued on January 21, 2009, executive departments and

agencies (agencies) have been working steadily to promote accountability, encourage collaboration, and provide information to Americans about their Government's activities.

To that end, much progress has been made toward

strengthening our democracy and improving how Government operates. In the regulatory area, several agencies, such as the Department of Labor and the Environmental Protection Agency, have begun to post online

(at ogesdw.dol.gov and www.epa-echo.gov), and to make

readily accessible to the public, information concerning their regulatory compliance and enforcement activities; such as information with respect to administrative inspections, examinations, reviews, warnings,

citations, and revocations (but excluding law enforcement or otherwise sensitive information about ongoing

enforcement actions).

Greater disclosure of regulatory compliance information fosters fair and consistent enforcement of important regulatory obligations. Such disclosure is a critical step in encouraging the public to hold the Government and regulated entities accountable. Sound regulatory enforcement promotes the welfare of Americans

in many ways, by increasing public safety, improving

working conditions, and protecting the air we breathe

and the water we drink. Consistent regulatory enforcement also levels the playing field among regulated entities, ensuring that those that fail to comply with the

law do not have an unfair advantage over their lawabiding competitors. Greater agency disclosure of compliance and enforcement data will provide Americans

with information they need to make informed decisions. Such disclosure can lead the Government to hold

itself more accountable, encouraging agencies to identify and address enforcement gaps.

Accordingly, I direct the following:

First, agencies with broad regulatory compliance and

administrative enforcement responsibilities, within 120

days of this memorandum, to the extent feasible and

permitted by law, shall develop plans to make public

information concerning their regulatory compliance

and enforcement activities accessible, downloadable,

and searchable online. In so doing, agencies should prioritize making accessible information that is most useful to the general public and should consider the use of

new technologies to allow the public to have access to

real-time data. The independent agencies are encouraged to comply with this directive.

Second, the Federal Chief Information Officer and the

Chief Technology Officer shall work with appropriate

counterparts in each agency to make such data available online in searchable form, including on centralized

platforms such as data.gov, in a manner that facilitates

easy access, encourages cross-agency comparisons, and

engages the public in new and creative ways of using

the information.

Third, the Federal Chief Information Officer and the

Chief Technology Officer, in coordination with the Director of the Office of Management and Budget (OMB)

and their counterparts in each agency, shall work to

explore how best to generate and share enforcement

and compliance information across the Government,

consistent with law. Such data sharing can assist with

agencies' risk-based approaches to enforcement: A lack

of compliance in one area by a regulated entity may indicate a need for examination and closer attention by

another agency. Efforts to share data across agencies,

where appropriate and permitted by law, may help to

promote flexible and coordinated enforcement regimes.

This memorandum is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other

person. Nothing in this memorandum shall be construed to impair or otherwise affect the functions of

the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative

proposals.

The Director of OMB is authorized and directed to

publish this memorandum in the Federal Register.

BARACK OBAMA.

REGULATORY FLEXIBILITY, SMALL BUSINESS, AND JOB

CREATION

Memorandum of President of the United States, Jan.

18, 2011, 76 F.R. 3827, provided:

Memorandum for the Heads of Executive Departments and Agencies

Small businesses play an essential role in the American economy; they help to fuel productivity, economic

growth, and job creation. More than half of all Americans working in the private sector either are employed

by a small business or own one. During a recent 15-year

period, small businesses created more than 60 percent

of all new jobs in the Nation.

Page 823
TITLE 5--GOVERNMENT ORGANIZATION AND EMPLOYEES

Although small businesses and new companies provide the foundations for economic growth and job creation, they have faced severe challenges as a result of

the recession. One consequence has been the loss of significant numbers of jobs.

The Regulatory Flexibility Act (RFA), 5 U.S.C.

601-612, establishes a deep national commitment to

achieving statutory goals without imposing unnecessary burdens on the public. The RFA emphasizes the

importance of recognizing "differences in the scale and

resources of regulated entities" and of considering "alternative regulatory approaches . . . which minimize

the significant economic impact of rules on small businesses, small organizations, and small governmental

jurisdictions." 5 U.S.C. 601 note. To promote its central goals, the RFA imposes a series of requirements designed to ensure that agencies

produce regulatory flexibility analyses that give careful consideration to the effects of their regulations on

small businesses and explore significant alternatives in

order to minimize any significant economic impact on

small businesses. Among other things, the RFA requires that when an agency proposing a rule with such

impact is required to provide notice of the proposed

rule, it must also produce an initial regulatory flexibility analysis that includes discussion of significant alternatives. Significant alternatives include the use of

performance rather than design standards; simplification of compliance and reporting requirements for

small businesses; establishment of different timetables

that take into account the resources of small businesses; and- exemption from coverage for small businesses.

Consistent with the goal of open government, the

RFA also encourages public participation in and transparency about the rulemaking process. Among other

things, the statute requires agencies proposing rules

with a significant economic impact on small businesses

to provide an opportunity for public comment on any

required initial regulatory flexibility analysis, and generally requires agencies promulgating final rules with

such significant economic impact to respond, in a final

regulatory flexibility analysis, to comments filed by

the Chief Counsel for Advocacy of the Small Business

Administration.

My Administration is firmly committed to eliminating excessive and unjustified burdens on small businesses, and to ensuring that regulations are designed

with careful consideration of their effects, including

their cumulative effects, on small businesses. Executive Order 12866 of September 30, 1993, as amended,

states, "Each agency shall tailor its regulations to impose the least burden on society, including individuals,

businesses of differing sizes, and other entities (including small communities and governmental entities),

consistent with obtaining the regulatory objectives,

taking into account, among other things, and to the extent practicable, the costs of cumulative regulations."

In the current economic environment, it is especially

important for agencies to design regulations in a costeffective manner consistent with the goals of promoting economic growth, innovation, competitiveness, and

job creation.

Accordingly, I hereby direct executive departments

and agencies and request independent agencies, when

initiating rulemaking that will have a significant economic impact on a substantial number of small entities, to give serious consideration to whether and how

it is appropriate, consistent with law and regulatory

objectives, to reduce regulatory burdens on small businesses, through increased flexibility. As the RFA recognizes, such flexibility may take many forms, including:

* extended compliance dates that take into account

the resources available to small entities;

* performance standards rather than design standards;

* simplification of reporting and compliance requirements (as, for example, through streamlined forms and

electronic filing options);

* different requirements for large and small firms;

and

* partial or total exemptions.

I further direct that whenever an executive agency

chooses, for reasons other than legal limitations, not to

provide such flexibility in a proposed or final rule that

is likely to have a significant economic impact on a substantial number of small entities, it should explicitly justify its decision not to do so in the explanation

that accompanies that proposed or final rule.

Adherence to these requirements is designed to en- sure that regulatory actions do not place unjustified

economic burdens on small business owners and other

small entities. If regulations are preceded by careful

analysis, and subjected to public comment, they are less likely to be based on intuition and guesswork and more likely to be justified in light of a clear understanding of the likely consequences of alternative courses of action. With that understanding, agencies

will be in a better position to protect the public while

avoiding excessive costs and paperwork. This memorandum is not intended to, and does not,

create any right or benefit, substantive or procedural,

enforceable at law or in equity by any party against

the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other

person. Nothing in this memorandum shall be con- strued to impair or otherwise affect the functions of

the Director of the Office of Management and Budget

relating to budgetary, administrative, or legislative

proposals.

The Director of the Office of Management and Budget

is authorized and directed to publish this memorandum

in the Federal Register.

BARACK OBAMA.

§ 602. Regulatory agenda

(a) During the months of October and April of

each year, each agency shall publish in the Federal Register a regulatory flexibility agenda

which shall contain-

(1) a brief description of the subject area of

any rule which the agency expects to propose

or promulgate which is likely to have a significant economic impact on a substantial

number of small entities;

(2) a summary of the nature of any such rule

under consideration for each subject area listed in the agenda pursuant to paragraph (1), the

objectives and legal basis for the issuance of

the rule, and an approximate schedule for

completing action on any rule for which the

agency has issued a general notice of proposed

rulemaking,' and

(3) the name and telephone number of an

agency official knowledgeable concerning the

items listed in paragraph (1).

(b) Each regulatory flexibility agenda shall be

transmitted to the Chief Counsel for Advocacy

of the Small Business Administration for comment, if any.

(c) Each agency shall endeavor to provide notice of each regulatory flexibility agenda to

small entities or their representatives through

direct notification or publication of the agenda

in publications likely to be obtained by such

small entities and shall invite comments upon

each subject area on the agenda.

(d) Nothing in this section precludes an agency from considering or acting on any matter not

included in a regulatory flexibility agenda, or

requires an agency to consider or act on any

matter listed in such agenda.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1166.)

1 so in original. The comma probably should be a semicolon.

§ 602 Page 824
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

§ 603. Initial regulatory flexibility analysis

(a) Whenever an agency is required by section

553 of this title, or any other law, to publish general notice of proposed rulemaking for any proposed rule, or publishes a notice of proposed

rulemaking for an interpretative rule involving

the internal revenue laws of the United States,

the agency shall prepare and make available for

public comment an initial regulatory flexibility

analysis. Such analysis shall describe the impact of the proposed rule on small entities. The

initial regulatory flexibility analysis or a summary shall be published in the Federal Register

at the time of the publication of general notice

of proposed rulemaking for the rule. The agency

shall transmit a copy of the initial regulatory

flexibility analysis to the Chief Counsel for Advocacy of the Small Business Administration. In

the case of an interpretative rule involving the

internal revenue laws of the United States, this

chapter applies to interpretative rules published

in the Federal Register for codification in the

Code of Federal Regulations, but only to the extent that such interpretative rules impose on

small entities a collection of information requirement.

(b) Each initial regulatory flexibility analysis

required under this section shall contain-

(1) a description of the reasons why action

by the agency is being considered;

(2) a succinct statement of the objectives of,

and legal basis for, the proposed rule;

(3) a description of and, where feasible, an

estimate of the number of small entities to

which the proposed rule will apply;

(4) a description of the projected reporting,

recordkeeping and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will

be subject to the requirement and the type of

professional skills necessary for preparation of

the report or record;

(5) an identification, to the extent practicable, of all relevant Federal rules which

may duplicate, overlap or conflict with the

proposed rule.

(c) Each initial regulatory flexibility analysis

shall also contain a description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable

statutes and which minimize any significant

economic impact of the proposed rule on small

entities. Consistent with the stated objectives of

applicable statutes, the analysis shall discuss

significant alternatives such as-

(1) the establishment of differing compliance

or reporting requirements or timetables that

take into account the resources available to

small entities;

(2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

(3) the use of performance rather than design

standards; and

(4) an exemption from coverage of the rule,

or any part thereof, for such small entities.

(d)(1) For a covered agency, as defined in section 609(d)(2), each initial regulatory flexibility

analysis shall include a description of-

(A) any projected increase in the cost of

credit for small entities;

(B) any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any increase in the cost of credit for

small entities; and

(C) advice and recommendations of representatives of small entities relating to issues described in subparagraphs (A) and (B)

and subsection (b).

(2) A covered agency, as defined in section

609(d)(2), shall, for purposes of complying with

paragraph (1)(C)-

(A) identify representatives of small entities

in consultation with the Chief Counsel for Advocacy of the Small Business Administration;

and

(B) collect advice and recommendations

from the representatives identified under subparagraph (A) relating to issues described in

subparagraphs (A) and (B) of paragraph (1) and

subsection (b).

(Added Pub. L. 96-354, § 3(a), Sept. 19, 1980, 94

Stat. 1166; amended Pub. L. 104-121, title II,

§241(a)(1), Mar. 29, 1996, 110 Stat. 864; Pub. L.

111-203, title X, § 1100G(b), July 21, 2010, 124 Stat.

2112.)

AMENDMENTS

2010-Subsec. (d). Pub. L. 111-203 added subsec. (d).

1996-Subsec. (a). Pub. L. 104-121, §241(a)(1)(B), inserted at end "In the case of an interpretative rule involving the internal revenue laws of the United States,

this chapter applies to interpretative rules published in

the Federal Register for codification in the Code of

Federal Regulations, but only to the extent that such

interpretative rules impose on small entities a collection of information requirement."

Pub. L. 104-121, §241(a)(1)(A), which directed the insertion of ", or publishes a notice of proposed rulemaking for an interpretative rule involving the internal revenue laws of the United States" after "proposed

rule" was executed by making the insertion where

those words appeared in first sentence to reflect the

probable intent of Congress.

EFFECTIVE DATE OF 2010 AMENDMENT

Amendment by Pub. L. 111-203 effective on the designated transfer date, see section l100H of Pub. L.

111-203, set out as a note under section 552a of this title.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

§ 604. Final regulatory flexibility analysis

(a) When an agency promulgates a final rule

under section 553 of this title, after being required by that section or any other law to publish a general notice of proposed rulemaking, or

promulgates a final interpretative rule involving the internal revenue laws of the United

States as described in section 603(a), the agency

shall prepare a final regulatory flexibility

analysis. Each final regulatory flexibility analysis shall contain-

(1) a statement of the need for, and objectives of, the rule;

Page 825 § 604
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(2) a statement of the significant issues

raised by the public comments in response to

the initial regulatory flexibility analysis, a

statement of the assessment of the agency of

such issues, and a statement of any changes

made in the proposed rule as a result of such

comments;

(3) the response of the agency to any comments filed by the Chief Counsel for Advocacy

of the Small Business Administration in response to the proposed rule, and a detailed

statement of any change made to the proposed

rule in the final rule as a result of the comments;

(4) a description of and an estimate of the

number of small entities to which the rule will

apply or an explanation of why no such estimate is available;

(5) a description of the projected reporting,

recordkeeping and other compliance requirements of the rule, including an estimate of the

classes of small entities which will be subject

to the requirement and the type of professional skills necessary for preparation of the

report or record;

(6)1 a description of the steps the agency has

taken to minimize the significant economic

impact on small entities consistent with the

stated objectives of applicable statutes, including a statement of the factual, policy, and

legal reasons for selecting the alternative

adopted in the final rule and why each one of

the other significant alternatives to the rule

considered by the agency which affect the impact on small entities was rejected; and

(6)1 for a covered agency, as defined in section 609(d)(2), a description of the steps the

agency has taken to minimize any additional

cost of credit for small entities.

(b) The agency shall make copies of the final

regulatory flexibility analysis available to

members of the public and shall publish in the

Federal Register such analysis or a summary

thereof.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1167; amended Pub. L. 104-121, title II,

§241(b), Mar. 29, 1996, 110 Stat. 864; Pub. L.

111-203, title X, §1100G(c), July 21, 2010, 124 Stat.

2113; Pub. L. 111-240, title I, §1601, Sept. 27, 2010,

124 Stat. 2551.)

AMENDMENTS

2010-Subsec. (a)(1). Pub. L. 111-240, §1601(1), struck

out "succinct" before "statement".

Subsec. (a)(2). Pub. L. 111-240, §1601(2), substituted

"statement" for "summary" before "of the significant

issues" and "of the assessment".

Subsec. (a)(3), (4). Pub. L. 111-240, § 1601(3), (4), added

par. (3) and redesignated former par. (3) as (4). Former

par. (4) redesignated (5).

Subsec. (a)(5). Pub. L. 111-240, §1601(3), redesignated

par. (4) as (5). Former par. (5), relating to description of

steps taken to minimize the significant economic impact on small entities, redesignated (6).

Pub. L. 111-203, §1lO0G(c)(1), which directed amendment of par. (4) by striking "and" at the end, was exe- cuted to par. (5) to reflect the probable intent of Congress and the intervening redesignation of par. (4) as (5)

by Pub. L. 111-240, § 1601(3). See above.

Subsec. (a)(6). Pub. L. 111-240, §1601(3), redesignated

par. (5), relating to description of steps taken to miniISo in original. Two pars. (6) have been enacted.

mize the significant economic impact on small entities,

as (6).

Pub. L. 111-203, §1100G(c)(3), added par. (6) relating to

description of steps taken to minimize any additional

cost of credit for small entities.

Pub. L. 111-203, §1100G(c)(2), which directed amendment of par. (5) by substituting "; and" for period at

end, was executed to par. (6), relating to description of

steps taken to minimize the significant economic impact on small entities, to reflect the probable intent of

Congress and the intervening redesignation of par. (5)

as (6) by Pub. L. 111-240, § 1601(3). See above.

1996-Subsec. (a). Pub. L. 104-121, §241(b)(1), amended

subsec. (a) generally. Prior to amendment, subsec. (a)

read as follows: "When an agency promulgates a final

rule under section 553 of this title, after being required

by that section or any other law to publish a general

notice of proposed rulemaking, the agency shall prepare a final regulatory flexibility analysis. Each final

regulatory flexibility analysis shall contain-

"(1) a succinct statement of the need for, and the

objectives of, the rule;

"(2) a summary of the issues raised by the public

comments in response to the initial regulatory flexibility analysis, a summary of the assessment of the

agency of such issues, and a statement of any

changes made in the proposed rule as a result of such

comments; and

"(3) a description of each of the significant alternatives to the rule consistent with the stated objectives of applicable statutes and designed to minimize

any significant economic impact of the rule on small

entities which was considered by the agency, and a

statement of the reasons why each one of such alternatives was rejected."

Subsec. (b). Pub. L. 104-121, §241(b)(2), substituted

"such analysis or a summary thereof." for "at the time

of publication of the final rule under section 553 of this

title a statement describing how the public may obtain

such copies."

EFFEcTIVE DATE OF 2010 AMENDMENT

Amendment by Pub. L. 111-203 effective on the designated transfer date, see section 1100H of Pub. L.

111-203, set out as a note under section 552a of this title.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

§ 605. Avoidance of duplicative or unnecessary

analyses

(a) Any Federal agency may perform the

analyses required by sections 602, 603, and 604 of

this title in conjunction with or as a part of any

other agenda or analysis required by any other

law if such other analysis satisfies the provisions of such sections.

(b) Sections 603 and 604 of this title shall not

apply to any proposed or final rule if the head of

the agency certifies that the rule will not, if

promulgated, have a significant economic impact on a substantial number of small entities.

If the head of the agency makes a certification

under the preceding sentence, the agency shall

publish such certification in the Federal Register at the time of publication of general notice

of proposed rulemaking for the rule or at the

time of publication of the final rule, along with

a statement providing the factual basis for such

certification. The agency shall provide such certification and statement to the Chief Counsel

§ 605 Page 826
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

for Advocacy of the Small Business Administration.

(c) In order to avoid duplicative action, an

agency may consider a series of closely related

rules as one rule for the purposes of sections 602,

603, 604 and 610 of this title.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1167; amended Pub. L. 104-121, title II,

§243(a), Mar. 29, 1996, 110 Stat. 866.)

AMENDMENTS

1996-Subsec. (b). Pub. L. 104-121 amended subsec. (b)

generally. Prior to amendment, subsec. (b) read as follows: "Sections 603 and 604 of this title shall not apply

to any proposed or final rule if the head of the agency

certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number

of small entities. If the head of the agency makes a cer- tification under the preceding sentence, the agency

shall publish such certification in the Federal Register,

at the time of publication of general notice of proposed

rulemaking for the rule or at the time of publication of

the final rule, along with a succinct statement explaining the reasons for such certification, and provide such

certification and statement to the Chief Counsel for

Advocacy of the Small Business Administration."

EFFECTrVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

§ 606. Effect on other law

The requirements of sections 603 and 604 of

this title do not alter in any manner standards

otherwise applicable by law to agency action.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1168.)

§ 607. Preparation of analyses

In complying with the provisions of sections

603 and 604 of this title, an agency may provide

either a quantifiable or numerical description of

the effects of a proposed rule or alternatives to

the proposed rule, or more general descriptive

statements if quantification is not practicable

or reliable.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1168.)

§ 608. Procedure for waiver or delay of completion

(a) An agency head may waive or delay the

completion of some or all of the requirements of

section 603 of this title by publishing in the Federal Register, not later than the date of publication of the final rule, a written finding, with

reasons therefor, that the final rule is being promulgated in response to an emergency that

makes compliance or timely compliance with

the provisions of section 603 of this title impracticable.

(b) Except as provided in section 605(b), an

agency head may not waive the requirements of

section 604 of this title. An agency head may

delay the completion of the requirements of section 604 of this title for a period of not more

than one hundred and eighty days after the date

of publication in the Federal Register of a final

rule by publishing in the Federal Register, not

later than such date of publication, a written

finding, with reasons therefor, that the final

rule is being promulgated in response to an

emergency that makes timely compliance with

the provisions of section 604 of this title impracticable. If the agency has not prepared a final

regulatory analysis pursuant to section 604 of

this title within one hundred and eighty days

from the date of publication of the final rule,

such rule shall lapse and have no effect. Such

rule shall not be repromulgated until a final regulatory flexibility analysis has been completed

by the agency.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1168.)

§ 609. Procedures for gathering comments

(a) When any rule is promulgated which will

have a significant economic impact on a substantial number of small entities, the head of

the agency promulgating the rule or the official

of the agency with statutory responsibility for

the promulgation of the rule shall assure that

small entities have been given an opportunity to

participate in the rulemaking for the rule

through the reasonable use of techniques such

as-

(1) the inclusion in an advanced notice of

proposed rulemaking, if issued, of a statement

that the proposed rule may have a significant

economic effect on a substantial number of

small entities;

(2) the publication of general notice of proposed rulemaking in publications likely to be

obtained by small entities;

(3) the direct notification of interested small

entities;

(4) the conduct of open conferences or public

hearings concerning the rule for small entities

including soliciting and receiving comments

over computer networks; and

(5) the adoption or modification of agency

procedural rules to reduce the cost or complexity of participation in the rulemaking by

small entities.

(b) Prior to publication of an initial regulatory flexibility analysis which a covered agency is required to conduct by this chapter-

(1) a covered agency shall notify the Chief

Counsel for Advocacy of the Small Business

Administration and provide the Chief Counsel

with information on the potential impacts of

the proposed rule on small entities and the

type of small entities that might be affected;

(2) not later than 15 days after the date of receipt of the materials described in paragraph

(1), the Chief Counsel shall identify individuals

representative of affected small entities for

the purpose of obtaining advice and recommendations from those individuals about the

potential impacts of the proposed rule;

(3) the agency shall convene a review panel

for such rule consisting wholly of full time

Federal employees of the office within the

agency responsible for carrying out the proposed rule, the Office of Information and Regulatory Affairs within the Office of Management and Budget, and the Chief Counsel;

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TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(4) the panel shall review any material the

agency has prepared in connection with this

chapter, including any draft proposed rule,

collect advice and recommendations of each

individual small entity representative identified by the agency after consultation with the

Chief Counsel, on issues related to subsections

603(b), paragraphs (3), (4) and (5) and 603(c);

(5) not later than 60 days after the date a

covered agency convenes a review panel pursuant to paragraph (3), the review panel shall report on the comments of the small entity representatives and its findings as to issues related to subsections 603(b), paragraphs (3), (4) and

(5) and 603(c), provided that such report shall

be made public as part of the rulemaking

record; and

(6) where appropriate, the agency shall modify the proposed rule, the initial regulatory

flexibility analysis or the decision on whether

an initial regulatory flexibility analysis is required.

(c) An agency may in its discretion apply subsection (b) to rules that the agency intends to

certify under subsection 605(b), but the agency

believes may have a greater than de minimis impact on a substantial number of small entities.

(d) For purposes of this section, the term

"covered agency" means-

(1) the Environmental Protection Agency;

(2) the Consumer Financial Protection Bureau of the Federal Reserve System; and

(3) the Occupational Safety and Health Administration of the Department of Labor.

(e) The Chief Counsel for Advocacy, in consultation with the individuals identified in subsection (b)(2), and with the Administrator of the

Office of Information and Regulatory Affairs

within the Office of Management and Budget,

may waive the requirements of subsections

(b)(3), (b)(4), and (b)(5) by including in the rulemaking record a written finding, with reasons

therefor, that those requirements would not advance the effective participation of small entities in the rulemaking process. For purposes of

this subsection, the factors to be considered in

making such a finding are as follows:

(1) In developing a proposed rule, the extent

to which the covered agency consulted with

individuals representative of affected small

entities with respect to the potential impacts

of the rule and took such concerns into consideration.

(2) Special circumstances requiring prompt

issuance of the rule.

(3) Whether the requirements of subsection

(b) would provide the individuals identified in

subsection (b)(2) with a competitive advantage

relative to other small entities.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1168; amended Pub. L. 104-121, title II,

§244(a), Mar. 29, 1996, 110 Stat. 867; Pub. L.

111-203, title X, §1100G(a), July 21, 2010, 124 Stat.

2112.)

AMENDMENTS

2010-Subsec. (d). Pub. L. 111-203 substituted

"means-" for "means the Environmental Protection

Agency and the Occupational Safety and Health Administration of the Department of Labor." and added

pars. (1) to (3).

1996-Pub. L. 104-121, §244(a)(2), (3), designated existing provisions as subsec. (a) and inserted "including soliciting and receiving comments over computer networks" after "entities" in par. (4).

Pub. L. 104-121, §244(a)(1), which directed insertion of

"the reasonable use of" before "techniques," in introductory provisions, was executed by making the insertion in text which did not contain a comma after the

word "techniques" to reflect the probable intent of

Congress.

Subsecs. (b) to (e). Pub. L. 104-121, §244(a)(4), added

subsecs. (b) to (e).

EFFECTIVE DATE OF 2010 AMENDMENT

Amendment by Pub. L. 111-203 effective on the designated transfer date, see section 1l0H of Pub. L.

111-203, set out as a note under section 552a of this title.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

SMALL BusINEss ADVOCACY CHAIRPERSONS

Pub. L. 104-121, title II, §244(b), Mar. 29, 1996, 110 Stat.

868, provided that: "Not later than 30 days after the

date of enactment of this Act [Mar. 29, 1996], the head

of each covered agency that has conducted a final regulatory flexibility analysis shall designate a small business advocacy chairperson using existing personnel to

the extent possible, to be responsible for implementing

this section and to act as permanent chair of the agency's review panels established pursuant to this section."

§ 610. Periodic review of rules

(a) Within one hundred and eighty days after

the effective date of this chapter, each agency

shall publish in the Federal Register a plan for

the periodic review of the rules issued by the

agency which have or will have a significant

economic impact upon a substantial number of

small entities. Such plan may be amended by

the agency at any time by publishing the revision in the Federal Register. The purpose of the

review shall be to determine whether. such rules

should be continued without change, or should

be amended or rescinded, consistent with the

stated objectives of applicable statutes, to minimize any significant economic impact of the

rules upon a substantial number of such small

entities. The plan shall provide for the review of

all such agency rules existing on the effective

date of this chapter within ten years of that

date and for the review of such rules adopted

after the effective date of this chapter within

ten years of the publication of such rules as the

final rule. If the head of the agency determines

that completion of the review of existing rules is

not feasible by the established date, he shall so

certify in a statement published in the Federal

Register and may extend the completion date by

one year at a time for a total of not more than

five years.

(b) In reviewing rules to minimize any significant economic impact of the rule on a substantial number of small entities in a manner consistent with the stated objectives of applicable

statutes, the agency shall consider the following

factors-

(1) the continued need for the rule;

§ 610 Page 828
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

(2) the nature of complaints or comments received concerning the rule from the public;

(3) the complexity of the rule;

(4) the extent to which the rule overlaps, duplicates or conflicts with other Federal rules,

and, to the extent feasible, with State and

local governmental rules; and

(5) the length of time since the rule has been

evaluated or the degree to which technology,

economic conditions, or other factors have

changed in the area affected by the rule.

(c) Each year, each agency shall publish in the

Federal Register a list of the rules which have a

significant economic impact on a substantial

number of small entities, which are to be reviewed pursuant to this section during the succeeding twelve months. The list shall include a

brief description of each rule and the need for

and legal basis of such rule and shall invite public comment upon the rule.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1169.)

REFERENCES IN TEXT

The effective date of this chapter, referred to in subsec. (a), is Jan. 1, 1981. See Effective Date note set out

under section 601 of this title.

§ 611. Judicial review

(a)(1) For any rule subject to this chapter, a

small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review of agency compliance with the requirements of sections 601, 604, 605(b), 608(b), and

610 in accordance with chapter 7. Agency compliance with sections 607 and 609(a) shall be judicially reviewable in connection with judicial review of section 604.

(2) Each court having jurisdiction to review

such rule for compliance with section 553, or

under any other provision of law, shall have jurisdiction to review any claims of noncompliance with sections 601, 604, 605(b), 608(b), and 610

in accordance with chapter 7. Agency compliance with sections 607 and 609(a) shall be judicially reviewable in connection with judicial review of section 604.

(3)(A) A small entity may seek such review

during the period beginning on the date of final

agency action and ending one year later, except

that where a provision of law requires that an

action challenging a final agency action be commenced before the expiration of one year, such

lesser period shall apply to an action for judicial

review under this section.

(B) In the case where an agency delays the issuance of a final regulatory flexibility analysis

pursuant to section 608(b) of this chapter, an action for judicial review under this section shall

be filed not later than-

(i) one year after the date the analysis is

made available to the public, or

(ii) where a provision of law requires that an

action challenging a final agency regulation

be commenced before the expiration of the 1-

year period, the number of days specified in

such provision of law that is after the date the

analysis is made available to the public.

(4) In granting any relief in an action under

this section, the court shall order the agency to

take corrective action consistent with this

chapter and chapter 7, including, but not limited

to-

(A) remanding the rule to the agency, and

(B) deferring the enforcement of the rule

against small entities unless the court finds

that continued enforcement of the rule is in

the public interest.

(5) Nothing in this subsection shall be construed to limit the authority of any court to

stay the effective date of any rule or provision

thereof under any other provision of law or to

grant any other relief in addition to the requirements of this section.

(b) In an action for the judicial review of a

rule, the regulatory flexibility analysis for such

rule, including an analysis prepared or corrected

pursuant to paragraph (a)(4), shall constitute

part of the entire record of agency action in connection with such review.

(c) Compliance or noncompliance by an agency

with the provisions of this chapter shall be subject to judicial review only in accordance with

this section.

(d) Nothing in this section bars judicial review

of any other impact statement or similar analysis required by any other law if judicial review

of such statement or analysis is otherwise permitted by law.

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1169; amended Pub. L. 104-121, title II, § 242,

Mar. 29, 1996, 110 Stat. 865.)

AMENDMENTS

1996-Pub. L. 104-121 amended section generally. Prior

to amendment, section read as follows:

"(a) Except as otherwise provided in subsection (b),

any determination by an agency concerning the applicability of any of the provisions of this chapter to any

action of the agency shall not be subject to judicial re- view.

"(b) Any regulatory flexibility analysis prepared

under sections 603 and 604 of this title and the compli- ance or noncompliance of the agency with the provisions of this chapter shall not be subject to judicial re- view. When an action for judicial review of a rule is instituted, any regulatory flexibility analysis for such

rule shall constitute part of the whole record of agency

action in connection with the review.

"(c) Nothing in this section bars judicial review of

any other impact statement or similar analysis required by any other law if judicial review of such statement or analysis is otherwise provided by law."

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

§ 612. Reports and intervention rights

(a) The Chief Counsel for Advocacy of the

Small Business Administration shall monitor

agency compliance with this chapter and shall

report at least annually thereon to the President and to the Committees on the Judiciary

and Small Business of the Senate and House of

Representatives.

(b) The Chief Counsel for Advocacy of the

Small Business Administration is authorized to

appear as amicus curiae in any action brought

Page 829 § 612
TITLE 5-GOVERNMENT ORGANIZATION AND EMPLOYEES

in a court of the United States to review a rule.

In any such action, the Chief Counsel is authorized to present his or her views with respect to

compliance with this chapter, the adequacy of

the rulemaking record with respect to small entities and the effect of the rule on small entities.

(c) A court of the United States shall grant

the application of the Chief Counsel for Advocacy of the Small Business Administration to

appear in any such action for the purposes described in subsection (b).

(Added Pub. L. 96-354, §3(a), Sept. 19, 1980, 94

Stat. 1170; amended Pub. L. 104-121, title II,

§243(b), Mar. 29, 1996, 110 Stat. 866.)

AMENDMENTS

1996-Subsec. (a). Pub. L. 104-121, §243(b)(1), which directed substitution of "the Committees on the Judiciary and Small Business of the Senate and House of Representatives" for "the committees on the Judiciary of

the Senate and the House of Representatives, the Select Committee on Small Business of the Senate, and

the Committee on Small Business of the House of Representatives", was executed by making the substitution for "the Committees on the Judiciary of the

Senate and House of Representatives, the Select Committee on Small Business of the Senate, and the Committee on Small Business of the House of Representatives" to reflect the probable intent of Congress.

Subsec. (b). Pub. L. 104-121, §243(b)(2), substituted

"his or her views with respect to compliance with this

chapter, the adequacy of the rulemaking record with

respect to small entities and the" for "his views with

respect to the".

CHANGE OF NAME

Committee on Small Business of Senate changed to

Committee on Small Business and Entrepreneurship of

Senate. See Senate Resolution No. 123, One Hundred

Seventh Congress, June 29, 2001.

EFFECTIVE DATE OF 1996 AMENDMENT

Amendment by Pub. L. 104-121 effective on expiration

of 90 days after Mar. 29, 1996, but inapplicable to interpretative rules for which a notice of proposed rulemaking was published prior to Mar. 29, 1996, see section

245 of Pub. L. 104-121, set out as a note under section 601

of this title.

CHAPTER 7-JUDICIAL REVIEW

Sec.

701. Application; definitions.

702. Right of review.

703. Form and venue of proceeding.

704. Actions reviewable.

705. Relief pending review.

706. Scope of review.

SHORT TITLE

The provisions of sections 551 to 559 of this title and

this chapter were originally enacted by act June 11,

1946, ch. 423, 60 Stat. 237, popularly known as the "Administrative Procedure Act". That Act was repealed as

part of the general revision of this title by Pub. L.

89-554 and its provisions incorporated into sections 551

to 559 of this title and this chapter.

§ 701. Application; definitions

(a) This chapter applies, according to the provisions thereof, except to the extent that-

(1) statutes preclude judicial review; or

(2) agency action is committed to agency

discretion by law.

(b) For the purpose of this chapter-

(1) "agency" means each authority of the

Government of the United States, whether or

not it is within or subject to review by another agency, but does not include-

(A) the Congress;

(B) the courts of the United States;

(C) the governments of the territories or

possessions of the United States;

(D) the government of the District of Columbia;

(E) agencies composed of representatives

of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the

field in time of war or in occupied territory;

or

(H) functions conferred by sections 1738,

1739, 1743, and 1744 of titlb 12; subchapter II

of chapter 471 of title 49; or sections 1884,

1891-1902, and former section 1641(b)(2), of

title 50, appendix; and

(2) "person", "rule", "order", "license", "sanction", "relief", and "agency action"

have the meanings given them by section 551

of this title.

(Pub. L. 89-554, Sept. 6, 1966, 80 Stat. 392; Pub. L.

103-272, §5(a), July 5, 1994, 108 Stat. 1373; Pub. L.

111-350, §5(a)(3), Jan. 4, 2011, 124 Stat. 3841.)

HISTORICAL AND REVISION NOTES

Derivation U.S. Code Revised Statutes and

Statutes at Large

(a) ............. 5 U.S.C. 1009 (intro- June 11, 1946, ch. 324, §10

ductory clause). (introductory clause), 60

Stat. 243.

In subsection (a), the words "This chapter applies, according to the provisions thereof," are added to avoid

the necessity of repeating the introductory clause of

former section 1009 in sections 702-706.

Subsection (b) is added on authority of section 2 of

the Act of June 11, 1946, ch. 324, 60 Stat. 237, as amended, which is carried into section 551 of this title.

In subsection (b)(1)(G), the words "or naval" are

omitted as included in "military".

In subsection (b)(1)(H), the words "functions which by

law expire on the termination of present hostilities,

within any fixed period thereafter, or before July 1,

1947" are omitted as executed. Reference to the "Selective Training and Service Act of 1940" is omitted as that Act expired on Mar. 31, 1947. Reference to the

"Sugar Control Extension Act of 1947" is omitted as

that Act expired on Mar. 31, 1948. References to the

"Housing and Rent Act of 1947, as amended" and the

"Veterans' Emergency Housing Act of 1946" have been

consolidated as they are related. The reference to

former section 1641(b)(2) of title 50, appendix, is re- tained notwithstanding its repeal by §111(a)(1) of the

Act of Sept. 21, 1961, Pub. L. 87-256, 75 Stat. 538, since

§111(c) of the Act provides that a reference in other

Acts to a provision of law repealed by §111(a) shall be

considered to be a reference to the appropriate provisions of Pub. L. 87-256.

Standard changes are made to conform with the definitions applicable and the style of this title as outlined

in the preface to the report.

REFERENCES IN TEXT

Sections 1891-1902 of title 50, appendix, referred to in

subsec. (b)(1)(H), were omitted from the Code as executed.

§ 701 Page 830